History of political and legal doctrines. Cheat sheet: briefly, the most important

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History of political and legal doctrines. Cheat sheet: briefly, the most important

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1. THE SUBJECT OF THE HISTORY OF POLITICAL AND LEGAL DOCTRINES AS AN INDEPENDENT LEGAL DISCIPLINE

Politics, state, law, legislation are the objects of study of various humanities - jurisprudence, philosophy, sociology, political science, ethics, etc.

In the system of legal sciences and legal education, the history of political and legal doctrines is an independent scientific and educational discipline of both historical and theoretical profiles. This feature is due to the fact that within the framework of this legal discipline, a specific subject is investigated and covered - the history of the emergence and development of theoretical knowledge about the state, law, politics and legislation, the history of political and legal theories.

It should be noted the originality of the subject of the history of political and legal doctrines in comparison with the subjects of other legal disciplines of theoretical and historical profiles.

Unlike the subjects of legal sciences, the subject of the history of political and legal doctrines is not the historically emerging and developing political and legal institutions and institutions, but the corresponding forms of their theoretical knowledge. At the same time, the interconnection and mutual influence of the history of political and legal ideas and doctrines, on the one hand, and the history of state-legal forms, institutions, and institutions, on the other, are obvious. Without knowledge of the history of the state and law, it is just as impossible to understand the specific content of the relevant political and legal theories, just as it is impossible to scientifically illuminate the historically developing political and legal reality without the corresponding theoretical provisions and concepts.

In relation to the general theoretical legal sciences, the history of political and legal doctrines acts primarily as a historical discipline, oriented in its subject matter to the study of the history of political and legal theories, the patterns of the historical process of the emergence and development of theoretical knowledge about the state, law, politics, and legislation.

In the complex process of interrelations in the legal science of historical and theoretical disciplines, the history of political and legal doctrines plays a significant role as one of the important historical and theoretical prerequisites for the development of modern political and legal knowledge, improving the theoretical development of problems of state and law.

The correlation of the history of political and legal doctrines with other legal and philosophical sciences, as well as the interconnections of historical and theoretical aspects within this discipline itself, clearly reflect the fundamental circumstance that the subject of the discipline in question is not just a set of political and legal doctrines of the past, but precisely their story. Finding out the meaning of this historicity is significant for characterizing both the subject of this discipline and its methodology.

The connection within the framework of a single legal discipline of political and legal doctrines is ultimately due to the close internal interconnection of political and legal phenomena and relevant concepts, which is especially clearly visible from the specific subject-methodological positions of legal science as a whole, which is a single complex of state science and jurisprudence. The political teachings of the past are presented in the subject not as the history of state studies, but in the form of relevant theoretical studies of the problems of the state as a special political phenomenon and institution in the broad context of other political phenomena, relations and institutions, in interconnection and interaction with them, i.e., as the problems of the theory of statehood were studied by representatives of various schools and trends in the real history of political doctrines.

2. ORIGINS OF POLITICAL AND LEGAL THOUGHT

Political and legal doctrines in the strict and special sense of this concept appeared only in the course of a rather long existence of early class societies and states.

In its origin, the political and legal thought among the ancient peoples in the East and in the West - among the ancient Egyptians, Hindus, Chinese, Babylonians, Persians, Jews, Greeks, Romans, etc. - goes back to mythological sources and operates with mythological ideas about the place of man in the world . At an early stage of their development, the views, conventionally referred to as political and legal, had not yet managed to stand out as a relatively independent form of social consciousness and represented an integral moment of a holistic mythological worldview.

Earthly orders, according to ancient myths, are an inseparable part of the global, cosmic orders of divine origin. In line with this understanding, the theme of the earthly life of people, their social and state structure, their relationship with each other and with the gods, their rights and obligations is covered in the myth. This or that version of the divine origin of earthly power and order is, therefore, a universally binding model of their respective dispensation and at the same time the dominant ideology.

The myths of a number of peoples speak of the initial direct rule of the gods, who then taught people the art of government and transferred power to earthly rulers. According to the ancient Babylonian and ancient Indian myths, the gods, being the source of the ruler's power, at the same time continue to be the arbiters of earthly affairs and human destinies.

A certain originality is inherent in the religious and mythological ideas of the ancient Jews. According to their version, the one true god is in a special contractual relationship with the entire Jewish people, is its head and king. Noteworthy is the idea used here of the contractual nature of power. The laws of the Jewish people, according to the sacred teachings of the Jews, received Moses straight from god.

The ancient Chinese myth about the divine origin and nature of earthly power is very original, according to which it is the person of the supreme ruler Celestial (i.e., the emperor of China) is the only point of connection with the higher, heavenly powers.

Sumerian и Babylonian rulers and legislators insistently emphasized the divine nature of their power and their laws, their conformity to the invariable divine institutions and justice. These ideas are widely reflected in the famous ancient Babylonian political and legal monument of the XNUMXth century. BC e. - Laws of Hammurabi.

The mythical representations of the ancient Persians later found their development and expression in Zoroastrianism. The founder of this religious and ethical trend was Zarathustra (VIII century BC). The state according to Zoroastrianism should be the earthly embodiment of the heavenly kingdom Ormuzda. The monarch is a servant of Or-muzd, he must protect his subjects from evil and, fighting against evil in the state, instill goodness.

For all its specificity, religion thematically and chronologically follows the myth and is, in relation to the primary myths about the gods, a subsequent, secondary formation. Mythical theism precedes religious theism and theology. The continuity between myth and religion that follows from this (a continuity that is also significant in the field of political and legal views and is directly manifested, for example, in the form of teachings about the divine nature of power and order, about divine law, etc.) is obvious.

The theistic approach, adopted by religion from myth and thoroughly reworked in it, has everywhere become a noticeable and influential trend in political and legal thought, whose influence in modified forms continues to this day.

3. POLITICAL AND LEGAL THOUGHT OF ANCIENT INDIA

Under the noticeable influence of mythological and religious ideas, political and legal thought was formed and developed in Ancient india. Connected with this is the dominant position that priests occupied for many centuries (Brahmins) in the spiritual and socio-political life of ancient Indian society. The beginnings of the ideology of Brahmanism are already found in a number of ancient Indian monuments of the XNUMXnd millennium BC. e., collectively referred to as Vedas. The Vedas speak of the division of society into four varnas (estates), which were created by the gods from Purushas (world body and spirit). The world law (rta), according to such a mythological-organic concept, determines the constitution (structure) of society, the place, role and position (including the legal status) of various varnes (estates), and consequently, the rights and obligations of the members of these varnas as well.

Brahmanism receives its further development and concretization in another monument of ancient Indian thought - in Upanishads, the emergence of which dates back to the 9th-6th centuries. BC e.

All varnas and their members must, according to the Vedas and Upanishads, follow the divinely ordained for them dharma (dhamma) - law, duty, custom, rule of conduct. Moreover, the dominant position of the Brahmins in society and the state also predetermined the leading significance of the Brahminist interpretations of the social and political-legal meaning of dharma in relation to members of various varnas.

The ideology of Brahmanism permeates numerous Dharmasutras and Dharmashastras - legal collections that were compiled by various Brahmanical schools.

Around the XNUMXnd century BC e. refers to the written design based on more ancient sources of a well-known political and legal monument - "Laws of Manu". The “Laws of Manu” reproduces and defends the corresponding provisions of the Vedas and Upanishads on the division of society into varnas, their inequality, etc. Particular importance is attached to the justification of the leadership position of the brahmans and the exclusive nature of their rights in matters of establishing, interpreting and protecting dharma. It is noteworthy that for all his high and even divine status, the king, according to the “Laws of Manu,” must honor the brahmanas and follow their advice and instructions.

With criticism of a number of basic provisions of the Vedas, Upanishads and Brahmanistic ideology in general in the 6th century. BC e. spoke Siddharthanicknamed buddha (Enlightened). He rejects the idea of God as the supreme personality and moral ruler of the world, the primary source of law. The affairs of men, according to the Buddha, depend on the own efforts of men.

From the standpoint of recognizing the moral and spiritual equality of all people, the Buddha and his followers criticized both the system of varnas and the principle of their inequality.

Buddhism opposed the traditional theological Brahminist interpretation of dharma (dhamma) with its own, largely rationalistic approach to this key concept of the then political and legal thought and ideology in general. In the Buddhist interpretation, dharma acts as a natural law governing the world, a natural law. Already at the beginning of its inception, many of the ideas of Buddhism had a relevant socio-political significance and sound. With the growth in the number of supporters of Buddhism and the strengthening of their positions, this significance was increasingly strengthened. Gradually, the ideas of Buddhism began to influence state policy and legislation.

4. POLITICAL AND LEGAL THOUGHT OF ANCIENT CHINA

The founder of Taoism, one of the most influential currents of ancient Chinese philosophical and socio-political thought, is considered Lao Tzu (VI century BC). His views are expressed in the work "Tao Te Ching" ("The Book of Tao and Te"). Lao Tzu characterizes Tao as a natural course of things independent of the heavenly ruler, a natural pattern. Tao defines the laws of heaven, nature and society. It represents the highest virtue and natural justice. In relation to the Tao, everyone is equal.

All the shortcomings of contemporary culture, the socio-political inequality of people, the plight of the people, etc., Lao Tzu attributes to a deviation from the true Tao. While protesting against the existing state of affairs, he at the same time pinned all his hopes on the spontaneous action of the Tao, to which the ability to restore justice is attributed. In this interpretation, Tao acts as a natural right of direct action.

A fundamental role in the entire history of ethical and political thought in China was played by the doctrine Confucius (551-479 BC). His views are presented in the book "Lun Yu" ("Conversations and Sayings"), compiled by his students.

Based on traditional views, Confucius developed the patriarchal-paternalistic concept of the state. The state is interpreted by him as a big family. The power of the emperor ("son of heaven") is likened to the power of the father, and the relationship between the ruling and subjects is likened to family relations, where the younger ones depend on the elders. The socio-political hierarchy depicted by Confucius is based on the principle of human inequality. Thus, Confucius advocated the aristocratic concept of government, since the common people were completely excluded from participation in government.

True, his political ideal consisted in the rule of the aristocrats of virtue and knowledge, and not of the tribal nobility and the rich, so that the ideal structure of government he proposed differed from the then socio-political realities and, due to this, had a certain critical potential. But in general, Confucius and his followers, despite some critical remarks and judgments, are characterized by a conciliatory and compromise rather than a critical attitude towards the existing order.

Founder Moism Mo Tzu (479-400 BC) developed the idea of the natural equality of all people and came up with the rationale for the contractual concept of the emergence of the state, which is based on the idea that the people belong to the supreme power.

Following the heavenly model Mo-tzu also called "reverence for wisdom as the basis of management." In search of a "single model of justice," Mo-tzu put forward the idea of a contractual origin of the state and government.

The main ideas of ancient Chinese legalism are set forth in a treatise of the XNUMXth century. BC e.

"shang jun shu" ("Book of the ruler of the Shang region"). A number of chapters of the treatise were written by himself Gongsun Yang (390-338 BC), known as Shang Yang. This prominent theorist of legalism and one of the founders of the school of “legalists” (fajia) was the ruler of the Shang region during the time of the Qin ruler Xiao-gong (361-338 BC).

On the whole, the whole concept of management proposed by Shang Yang is permeated with hostility towards people, an extremely low assessment of their qualities and confidence that through violent measures they can be subordinated to the desired "order".

5. GENERAL CHARACTERISTICS OF THE POLITICAL AND LEGAL DOCTRINES OF ANCIENT GREECE

Statehood in Ancient Greece arises at the beginning of the XNUMXst millennium BC. e. in the form of separate and independent policies - individual city-states, which included, along with the urban territory, also adjacent rural settlements.

Everywhere in the ancient Greek policies, a fierce struggle for power is unfolding, which finds its concentrated expression in the struggle for the establishment of one of the appropriate forms of government - aristocracy (powers of the old or new nobility, privileged, "best"), oligarchies (the power of the rich and haves) or democracy (the power of the people, that is, all adult free natives of a given policy).

As a result of this struggle, by the VI-V centuries. BC e. in different policies, the corresponding form of government is more or less firmly established and developed, in particular democracy in Athens and Abderach, oligarchy in Thebes and Megaraclose to the aristocracy in Sparta, etc. Quite often, tyranny was established in certain policies for a more or less long period of time. These processes were reflected and theoretically understood in the political and legal teachings of Ancient Greece.

In the history of the emergence and development of ancient Greek political and legal thought, three periods are more or less clearly distinguished. Early period (IX-VI centuries BC) associated with the emergence of ancient Greek statehood. During this period, there is a noticeable rationalization of political and legal ideas (in the works Homer, Hesiod and especially the famous "seven wise men") and a philosophical approach to the problems of state and law is being formed (Pythagoras and the Pythagoreans, Heraclitus). The second period (V - first half of the 4th century BC) is the heyday of ancient Greek philosophical and political-legal thought, which found its expression in the teachings Democritus, Sophists, Socrates, Plato и Aristotle. The third period (second half of the 4th-2nd centuries BC) is the period of Hellenism, the time of the beginning of the decline of ancient Greek statehood, the fall of Greek city-states under the rule of first Macedonia and then Rome. The views of this period are represented in the teachings of Epicurus, the Stoics and Polybius.

Having arisen in the conditions of dividing people into free and slaves, ancient political and legal thought took shape and developed as the ideology of the free. Freedom is a fundamental value, the main goal of efforts and the main concern of ancient Greek political theory and practice. This, of course, was not universal, but limited freedom: the slaves were outside this freedom. Nor were they subjects of that policy (polis life), which was a form of life only for free people, full members of the polis collective, citizens of the polis.

In the process of development of ancient Greek political and legal thought, early, largely mythological ideas (Homer and Hesiod) gradually gave way to the emerging philosophical approach ("wise men", Pythagoras, Heraclitus, Democritus), rationalistic interpretations (sophists), logical-conceptual analysis (Socrates, Plato) and, finally, the rudimentary forms of empirical-scientific (Aristotle) and historical-political (Polybius) study of the state and law.

In the era of Hellenism, the value of the moral whole, the polis and the collective polis (political) life is questioned, criticized and rejected the former division of people into free and slaves. Freedom is interpreted here not as a socio-political, but as a spiritual phenomenon, and on this basis the great principle of universal freedom and equality of people according to the laws of nature and natural law is proclaimed.

6. POLITICAL AND LEGAL THOUGHT IN ANCIENT GREECE IN THE PERIOD OF THE IX-VI CENTURIES BC

Ancient myths already partly in Orphic poetry, and then more and more clearly in poems Homer и Hesiod lose their sacred character and begin to be subjected to ethical and political-legal interpretation. According to their interpretation, the struggle of the gods for power over the world and the change of the supreme gods (Uranus - Kron - Zeus) was accompanied by a change in the principles of their rule and domination, which was manifested not only in the relationship between the gods themselves, but also in their relationship to people, in all order, forms and rules of earthly social life.

The ideas of law and a just social order become even more important in poems Hesiod (VII century BC) “Theogony” and “Works and Days”. Gods in his interpretation act as the personification of various moral and legal principles and forces.

The attempts to rationalize ideas about the ethical, moral and legal order in human affairs and relations, characteristic of the poems of Homer and Hesiod, are further developed in the work of the so-called seven wise men of Ancient Greece. (VII-VI centuries BC). These were usually included Thales, Pittacus, Periander, Byant, Solon, Cleobulus и Chilon.

The sages persistently emphasized the fundamental importance of the rule of just laws in the life of the city. Among the "seven wise men" was Solon (c. 638-559 BC) - the famous Athenian reformer, statesman and legislator. He was elected the first archon and endowed with broad powers. Taking state affairs into his own hands, Solon issued new laws (in 594 BC) and quite significantly reformed the socio-political system of the Athenian policy.

Solon made the abolition of private and public debts - the so-called sisachfia (shaking off the burden). Having abolished bondage for past debts, he forbade future provision of loans with personal bondage. The state, according to Solon, first of all needs a legal order: lawlessness and civil strife are the greatest evil, order and law are the greatest good for the policy.

With the idea of the need to transform social and political and legal orders on a philosophical basis in the VI-V centuries. BC e. spoke Pythagoras (580-500 BC), Pythagoreans (Archita, Lysis, Philolaus , etc.), Heraclitus (530-470 BC). Criticizing democracy, they substantiated the aristocratic ideals of rule by the “best” - the intellectual and moral elite.

The decisive role in the entire worldview of the Pythagoreans, which was largely mystical in nature, was played by their doctrine of numbers. The number, according to their ideas, is the beginning and essence of the world. Based on this, they tried to identify the digital (mathematical) characteristics inherent in moral and political-legal phenomena. Justice, according to the Pythagoreans, consists in retribution to equals for equals. The Pythagoreans considered anarchy (anarchy) to be the worst evil.

The author of the ideal model of the policy was Faley of Chalcedon, who argued that all kinds of internal unrest arise from questions relating to property. In order to achieve a perfect arrangement of polis life, it is necessary, according to Faley, to equalize the landed property of all citizens.

A prominent place in the history of ancient thought is occupied by the teachings of Heraclitus. Political and legal views of Heraclitus are closely connected with his general philosophical provisions. Thinking, according to Heraclitus, is inherent in all, but most people do not understand the universal logos (the all-ruling mind) that must be followed. Proceeding from this, Heraclitus distinguishes between the wise and the foolish, the best and the worst. The moral and political evaluation of people is the consequence of the measure of their intellectual comprehension of the logos.

7. THE FLOWERING PERIOD OF ANCIENT GREEK POLITICAL AND LEGAL THOUGHT

The development of political and legal thought in V in. contributed significantly to the deepening of philosophical and social analysis of the problems of society, state, politics and law.

У Democritus (c. 460-370 BC) there is one of the first attempts to consider the emergence and formation of man, the human race and society as part of the natural process of world development. In the course of this process, people gradually, under the influence of need, imitating nature and animals and relying on their experience, acquired all their basic knowledge and skills necessary for social life. In the state, according to Democritus, the common good and justice are represented. The interests of the state are above all, and the concerns of citizens should be directed towards its better organization and management. To preserve state unity, Democritus requires the unity of citizens, their mutual sympathy, mutual assistance, mutual protection and brotherhood. The involvement of the political and legal topic in the circle of wide discussion is associated with the names of the sophists who spoke in the XNUMXth century. BC e. in the conditions of strengthening and flourishing of ancient democracy. The name "sophist" comes from the word "sophos" (wise). Already in antiquity, two generations of sophists were distinguished: older (Protagoras, Gorgias, Prodicus, Hippias, Antiphon etc.) and younger (Thrasimachus, Callicles, Lycophron etc.) sophists. Many of the older sophists held generally democratic views. Among the younger sophists, along with supporters of democracy, there are adherents of other forms of government (aristocracy, tyranny).

The principal critic of the sophists was Socrates (469-399 BC) - one of the most interesting and popular figures in the spiritual history of mankind. Socrates was looking for a rational, logical and conceptual substantiation of the objective nature of ethical assessments, the moral nature of the state and law. Socrates was a principled supporter of legality. In terms of practical politics, the Socratic ideal meant the rule of those who know, that is, the justification of the principle of competent government, and in terms of theory, an attempt to identify and formulate the moral and rational basis and essence of the state.

Plato (427-347 BC) - one of the greatest thinkers not only of Antiquity, but also in the entire history of philosophy, political and legal doctrines. The ideal state is interpreted Plato (in dialogue "State") as the realization of ideas and the maximum possible embodiment of the world of ideas in earthly social and political life - in the polis. Plato - against the extremes of wealth and poverty, for moderation, average prosperity. Very perceptively, he notices the political significance of the property stratification of society. Plato sees the main socio-economic difference of the projected ideal state from all other states in the fact that the split into rich and poor has been overcome in it.

The ideal state as the rule of the best and noblest is an aristocratic state system.

Aristotle attempted a comprehensive development of the science of politics. The main result of ethical research, essential for politics, is the position that political justice is possible only between free and equal people belonging to the same community, and aims at their self-satisfaction (autarky).

Social and political and legal issues are covered by Aristotle in principle from the standpoint of an ideal understanding of the policy - the city-state as a political communication of free and equal people.

8. POLITICAL AND LEGAL THOUGHT OF THE HELLENISM PERIOD IV-II cc. BC

The crisis of ancient Greek statehood was clearly manifested in the teachings about the state and law of the Hellenistic period. In the last third 4th century BC uh. Greek city-states lose their independence and fall first under the rule of Macedonia and then Rome. The political and legal thought of this period found its expression in the teachings Epicurus, the Stoics и Polybius. According to his philosophical views Epicurus (341-270 BC) was the successor of the atomistic doctrine Democritus. Nature, according to the teachings of Epicurus, develops according to its own laws, without the intervention of the gods.

Ethics is the link between his physical and political-legal ideas. The basic values of the Epicurean ethics (pleasure, freedom), like all of it as a whole, are individualistic in nature. The freedom of man is, according to Epicurus, his responsibility for the reasonable choice of his way of life. The sphere of human freedom is the sphere of his responsibility for himself; it is beyond both necessity, since "necessity is not subject to responsibility," and a fickle event.

According to Epicurus, the main goal of state power and the basis of political communication are to ensure the mutual security of people, overcome their mutual fear, and not cause harm to each other. Politically, Epicurean ethics is most consistent with a form of moderate democracy, in which the rule of law is combined with the greatest possible measure of freedom and autonomy of individuals.

The founder of Stoicism was Zeno (336-264 BC). In the history of Stoicism there are three periods: ancient, middle and new (Roman). The main representatives of Stoicism are Zeno, Cleanthes и Chrysippus, Panetius и Posidonius, Seneca, Epictetus и Emperor Marcus Aurelius. The universe as a whole, according to Stoicism, is governed by fate. Fate in the teachings of the Stoics acts as such a “natural law” (“general law”), which at the same time has a divine character and meaning. According to Zeno, “natural law is divine and has the power to command (do) what is right and forbid what is contrary.”

According to the Stoics, the basis of civil society is the natural attraction of people to each other, their natural connection with each other. The state, therefore, appears among the Stoics as a natural association, and not as an artificial, conditional, contractual formation.

The teachings of the Stoics had a noticeable influence on the views Polybius (210-123 BC) - a prominent Greek historian and political figure of the Hellenistic period. Polybius's views are reflected in his famous work "History in Forty Books." The focus of Polybius's study is Rome's path to dominance over the entire Mediterranean. In his attempt to holistically embrace historical phenomena, he relies on the idea of “fate” rationalized by the Stoics, according to which it turns out to be a universal world law and reason. In general, Polybius is characterized by a statist view of current events, according to which one or another structure of the state plays a decisive role in all human relations. In total, according to Polybius, there are six main forms of state, which, in the order of their natural origin and succession, occupy the following place within their full cycle: kingdom (royal power), tyranny, aristocracy, oligarchy, democracy, ochlocracy. Polybius concludes that “undoubtedly the most perfect form should be recognized as one that combines the features of all the forms named above,” that is, royal power, aristocracy and democracy.

9. GENERAL CHARACTERISTICS OF POLITICAL AND LEGAL DOCTRINES IN ANCIENT ROME

The history of ancient Roman political and legal thought covers a whole millennium and in its evolution reflects significant changes in the socio-economic and political-legal life of Ancient Rome over a long time. The history of ancient Rome itself is usually divided into three periods: royal (754-510 BC), republican (509-28 BC), imperial (27 BC - 476 AD). Moreover, the unified Roman Empire in 395 AD. e. was finally divided into the Western (capital - Rome) and Eastern (capital - Constantinople) empires, and the latter (Eastern Roman, Byzantine Empire) existed until 1453. Political and legal institutions and views in Ancient Rome developed over a long history in conditions of acute the struggle between various segments of the population - patricians and plebeians, nobility (patricians and rich plebeians) and the poor, optimates (adherents of the upper classes) and popularists (supporters of the free lower classes), free and slaves. In general theoretical terms, ancient Roman political and legal thought was noticeably influenced by the corresponding ancient Greek concepts. It is noteworthy that when in the middle of the 451th century. BC e. The plebeians demanded the compilation of written legislation, Roman envoys were sent to Greece to familiarize themselves with Greek legislation and especially with the laws of Solon. The results of this acquaintance were used in compiling an important source of ancient Roman law - the famous Laws of the XII Tables (the first ten tables were adopted in 450 BC, the last two were compiled and adopted in 449-XNUMX BC) . The ancient Roman authors were significantly influenced by the views of Socrates, Plato, Aristotle, the Epicureans, the Stoics, Polybius and many other Greek thinkers.

So, the general philosophical views of Democritus and Epicurus, Democritus' ideas about the progressive development of people from the initial natural state to the creation of an orderly political life, state and laws, Epicurus's idea about the contractual nature of the state and law were perceived and developed Titus Lucretius Carus (99-55 BC) in his famous poem "On the Nature of Things".

In their theoretical constructions, Roman authors used the natural law ideas of Greek thinkers, their teachings on politics and political justice, on the forms of the state, on the "mixed" form of government, etc.

Roman authors did not limit themselves to simply borrowing the provisions of their predecessors, but developed them further, taking into account the specific socio-political conditions and tasks of Roman reality. For example, the idea of the relationship between politics and law, characteristic of ancient Greek thought, was further developed and re-expressed in Cicero's interpretation of the state as a public legal community. The idea of the Greek Stoics about a free individual was used by Roman authors (Cicero and lawyers) when creating, in essence, a new concept - the concept of a legal entity (legal person, person).

A significant achievement of ancient Roman thought was the creation of an independent science - jurisprudence. Roman lawyers carefully developed an extensive set of political and legal issues in the field of the general theory of state and law, as well as individual legal disciplines (civil law, state and administrative law, criminal law, international law).

10. THE DOCTRINE OF CICERO ON THE STATE AND LAW

Marcus Tullius Cicero (106-43 BC) - the famous Roman orator, lawyer, statesman and thinker. In his extensive work, considerable attention is paid to the problems of state and law. These issues are specially covered in his works "On the State" and "On the Laws". A number of political and legal problems are also considered in his other works (for example, in the work "On Duties"), as well as in his numerous political and judicial speeches. The theoretical views of Cicero in the field of state and law are under the noticeable influence of ancient Greek thought, and above all the teachings of Plato, Aristotle, Polybius and the Stoics.

Cicero defines the state as a matter, the property of the people. At the same time, he emphasizes that "the people are not any combination of people gathered together in any way, but a combination of many people connected with each other by agreement in matters of law and common interests." Cicero saw the main reason for the origin of the state not so much in the weakness of people and their fear (the point of view of Polybius), but in their innate need to live together. Sharing the position of Aristotle on this issue, Cicero rejected the ideas that were widespread in his time about the contractual nature of the emergence of the state. In line with the traditions of ancient Greek thought, Cicero paid great attention to the analysis of various forms of government, the emergence of some forms from others. Cicero saw the criteria for distinguishing forms of government in the "character and will" of those who rule the state. Depending on the number of rulers, he distinguished three simple forms of government: royal power, the power of optimates (aristocracy) and popular power (democracy).

The main vice of simple forms of state is, according to Cicero, that all of them inevitably, due to their inherent one-sidedness and instability, are on a "precipitous and slippery path" leading to misfortune. Royal power, fraught with the arbitrariness of an autocratic ruler, easily degenerates into tyranny, and the power of the optimates turns from the power of the best (in wisdom and valor) into the rule of a clique of the rich and noble. Accordingly, the sovereignty of the people, according to Cicero, leads to disastrous consequences, to "madness and arbitrariness of the crowd", to its tyrannical power. To prevent such a degeneration of statehood, according to Cicero, is possible only under conditions of the best (i.e., mixed) type of state structure, formed by uniformly mixing the positive properties of three simple forms of government. As the most important advantages of such a political system, Cicero noted the strength of the state and the legal equality of its citizens. In his activities, Cicero as a whole remained faithful to the basic ideas and principles of the theoretical concept of the state, which he developed in his political teaching. The key role here and there was given to ideas about the “common good”, “coordination of interests”, “general legal order”, etc. In this case, of course, the interests of free estates and citizens of the Roman Republic were meant, but not at all slaves.

Slavery, according to Cicero, “is just because the slave state is useful to such people and it is done for their benefit when it is done reasonably; that is, when dishonorable people are deprived of the opportunity to commit lawlessness, the oppressed will find themselves in a better position, while they, not being oppressed, were at their worst." Slavery is due to nature itself, which gives the best people dominion over the weak for their own benefit. Such is the logic of Cicero's reasoning, which he seeks to support with considerations about the relationship between the various parts of the soul: the master rules the slave in the same way as the best part of the soul (reason, wisdom) rules the weak and vicious parts of the soul (passions, anger, etc.).

11. POLITICAL AND LEGAL VIEWS OF THE ROMAN STOICS

The main representatives of Roman Stoicism were Lucius Annaeus Seneca (3-65), Epictetus (c. 50 - c. 140) и Marcus Aurelius Antony (121-180). Their general theoretical ideas were significantly influenced by the philosophical, ethical and political-legal concepts of the ancient Greek Stoics (Zeno, Chrysippus, Panaetius, Posidonius, etc.). The creativity of the Roman Stoics developed in the context of an intensified crisis of values of the former polis ideology, the strengthening of the power of the princeps and the regime of Caesarism, and the transformation of the Roman Empire into a world power. In this situation, the Roman Stoics, even more than the ancient Greeks, were inclined to preach fatalism and political passivity, cosmopolitanism and the individualistic ethics of moral self-improvement. Seneca defended the idea of spiritual freedom of all people, regardless of their social status. According to his ideas, the object (and sphere) of slavery can only be the bodily and sensory, but not the spiritual and rational part of a person. A slave, according to Seneca, is a person equal in nature to other people, and he has the same spiritual qualities as everyone else. Without rejecting slavery itself as a socio-political institution, Seneca at the same time considered it ethically untenable, defended the human dignity of the slave and called for humane treatment of him as a spiritually equal subject. In the spirit of the views of the ancient Greek Stoics, Seneca considered fate to be the cause of all causes. People are unable to change world relations, of which their own relationships are a part, but can only courageously and steadfastly endure the unfolding destiny, and surrender to the will of the laws of nature. In Seneca’s natural law concept, the “law of fate”, inevitable and divine in nature, plays the role of that law of nature to which all human institutions are subordinated, including the state and laws. Moreover, natural law itself acts here both as a natural fact (the order of the world order and the causal chain of events), and at the same time as a necessary imperative of reason. The universe, according to Seneca, is a natural state with its own natural law, the recognition of which is a necessary and reasonable matter. According to the law of nature, all people are members of this state, whether they admit it or not. As for individual state formations, they are random and significant not for the entire human race, but only for a limited number of people. Ethically, the most valuable and unconditional, according to Seneca’s concept, is the “big state”. Reasonability and, therefore, understanding of the “law of fate” lies precisely in resisting chance (including accidental belonging to one or another “small state”), recognizing the need for world laws and being guided by them. This ethical maxim is equally valid for individuals and their communities.

Similar ideas were developed by other Roman Stoics: Epictetus - a slave, then set free, and the emperor (in 161-180) Marcus Aurelius Anthony.

In Epictetus, calls for personal moral improvement and the proper fulfillment of the role that fate has sent down to everyone are complemented by sharp criticism of wealth and condemnation of slavery. The emphasis is on the immorality of slavery. Marcus Aurelius Anthony developed "the idea of a state with an equal law for all, governed according to the equality and equal rights of all, and a kingdom that above all respects the freedom of its subjects." In his essay "To Myself" he noted that due to the spiritual principle common to all people, we are all rational beings. The spirit of the whole, Marcus Aurelius believed, requires communication, but not chaotic, but corresponding to the harmonious order of the world.

12. THE DOCTRINE OF ROMAN JURISTS ABOUT LAW

In ancient Rome, the occupation of law was originally the work of the pontiffs, one of the colleges of priests. Every year, one of the pontiffs communicated to private individuals the position of the collegium on legal issues. Around 300 BC e. jurisprudence is freed from the pontiffs. The beginning of secular jurisprudence, according to legend, is associated with the name of Gnaeus Flavius. As a freedman and scribe of the prominent statesman Appius Claudius Caecus, he stole and published a collection of legal formulas compiled by the latter, used according to the law in the process. At the beginning of the II century. BC e.

Sextus Elius Petus, a prominent statesman, supplemented Josephus’s collection with new claims formulas. He also published another book in which he combined the Laws of the XII Tables with commentaries by lawyers and centuries-old formulas. In the middle of the 51nd century. BC e. A significant contribution to the development of jurisprudence, especially civil law, was made by M. Manilius, P. Mucius Scaevola and M. Junius Vrut. The first commentary on the praetor's edict was written by Servius Sulpicius Rufus (consul of 426 BC). Of the large number of famous jurists of the classical period, the most prominent were Guy (XNUMXnd century), Papinian (XNUMXnd-XNUMXrd centuries), Paul c.), Ulpian c.) and Modestine c.). The special law of Valentinian III (XNUMX) on the citation of jurists gave legal force to the provisions of these five jurists. If there were discrepancies between their opinions, the dispute was resolved by a majority, and if this was not possible, then preference was given to the opinion of Papinian.

Roman jurists focused their attention on developing problems of private law, and above all civil law. Lawyer Guy interpreted civil law as the law established among one or another people (for example, the Romans, Greeks, etc.). This interpretation is supplemented by Papinian by indicating the sources of civil law - laws, plebiscites of the Senate Consults, decrees of princeps, provisions of learned jurists. He characterizes praetor's law as a source of “supplement and correction of civil law.” In the same spirit, Marcian called the praetor's law "the living voice of civil law."

In the field of civil law, Roman lawyers worked out in detail the issues of property, family, wills, contracts, legal statuses of the individual, etc. They are especially thorough in their coverage of property relations from the standpoint of protecting the interests of a private owner. According to Roman law and the teaching of jurists, slaves are also objects of property along with animals and other things. The law of peoples, as understood by Roman lawyers, included both the rules of interstate relations and the norms of property and other contractual relations between Roman citizens and non-Romans (peregrines). To a large extent, this law of peoples was created under the influence of the edicts of the magistrates, who had the right of jurisdiction over peregrines, as well as imperial constitutions and the law-making activities of lawyers. All this ensured the interaction and mutual influence of the norms of civil law and the law of peoples, turning the latter into such a branch of Roman law that protected the political positions of the Roman state and the private interests of the Romans in their relations with non-Roman peoples and individuals. The law of peoples contained a number of norms of an international legal nature. According to the law of peoples, the sea is "common to all". The concept of "enemies" is used by Gaius and Pomponius to refer only to those to whom the Romans publicly declared war or who themselves publicly declared war on the Romans.

The work of Roman lawyers had a great influence on the subsequent development of legal thought. This is due to both the high legal culture of Roman jurisprudence and the role that fell to the lot of Roman law (the process of its reception, etc.) in the subsequent history of law.

13. POLITICAL AND LEGAL VIEWS OF AUGUSTINE

Aurelius Augustine (354-430) - one of the prominent ideologists of the Christian Church and Western patristics. He was the author who developed the main provisions of Christian philosophy. His political and legal views are set forth in the works "About the city of God", "About free will" and a number of other writings. In the Christian concept of the history of mankind developed by Augustine, based on biblical provisions, all social, state and legal institutions and institutions appear as a consequence of human sinfulness. In the work “On the City of God”, he notes that the “great crime” of Adam and Eve, from whom the entire human race descends, led to the fact that “human nature itself has changed for the worse and is handed over to posterity guilty of sin and inevitable death.” This sinfulness itself is predetermined by the plan of the creator god, who endowed man with free will, that is, the ability to live in his own way, like a human, and not like a god. The sinfulness of earthly state-legal life (relationships and institutions in the "earthly city") is manifested, according to Augustine, in the dominance of "man over man", in the existing relations of control and obedience, domination and slavery. This state of affairs, which has developed as a result of original sin and the continuing sinfulness of human nature, Augustine calls the "natural order" of human life.

In his interpretation of historical evolution, Augustine distinguishes six periods in the life of mankind: infancy, childhood (the time when memory develops), youth (the birth of the "lower mind", moral consciousness), maturity (the spread of religious consciousness), the beginning of old age (the time when the soul comprehends God). Thus, Augustine attributed the triumph of the religious principle to the mature and late age of mankind, by analogy with the moral maturation of an individual. The last period of the historical movement towards the triumph of Christianity is, according to Augustine, the time from the birth of Christ to his second coming.

On the issue of various forms of human community, Augustine, with a well-known Christian modification, shares the views of Cicero on the existence of such communities as the family, the state, a common language, human society, and, finally, a universal community that unites gods and people.

Augustine's views on human nature and human history are distinguished by a noticeable novelty, which is generally inherent in his interpretation of the relationship between man and the Christian God. Man, according to his views, is a weak being and completely incapable of either avoiding sin or creating any perfect society on earth. Ultimately, goodness and justice must prevail due to the pre-established eternal order and the irresistible authority of the deity. Divine order (including here on earth) turns out to be the highest expediency and goodness, the absolute norm of everything that should be, that is, an external and coercive force in relation to an individual whose sins or virtues are predetermined. Thus the individual individual is not an end in or for himself, but only a means to the realization of the divine order.

Regarding the definition of the state by Cicero, Augustine notes that it is more suitable for the definition of the church: the union of people is only based on law when combined with justice.

14. MAIN FEATURES OF THE POLITICAL AND LEGAL THOUGHT OF THE WESTERN EUROPEAN MEDIEVAL SOCIETY

In the history of Western Europe, the Middle Ages occupied a vast, more than a thousand-year era (V-XVI centuries). Political and legal doctrines in Western Europe of the era under review were constantly changing. The changes that took place in them, the significant shifts, were a natural consequence of the serious changes that accompanied the evolution of the socio-economic and political systems of feudal society in the countries of Western Europe.

Three major historical stages include this evolution. The first is early feudal (late XNUMXth - mid-XNUMXth century); feudalism is only just being consolidated and consolidated as a new socio-economic formation; within the framework of this stage, statehood is first organized into large, but very poorly integrated monarchies into a single whole, and then breaks up into conglomerates of fragmented political entities. The second stage is the time of the full development of the feudal system, the phase of its heyday (mid-XNUMXth - late XNUMXth century); for this period, centralized estate-representative monarchies are typical. The third - the late Middle Ages (end of the XNUMXth - beginning of the XNUMXth century); the period of decline, the decline of feudalism and the birth of capitalist social relations; statehood at this last stage of the feudal formation is built primarily as an absolute monarchy. The phased nature of the development of feudal society largely predetermined the features and dynamics of medieval Western European political and legal thought.

The originality of the latter was also given by the fact that the Christian religion and the Roman Catholic Church had an exceptionally strong influence on it. This church almost undividedly dominated the sphere of spiritual life for almost all of the Middle Ages. In the hands of the clergy, politics and jurisprudence, like all other sciences, remained applied branches of theology. Throughout the political history of the Western European Middle Ages, there was a fierce struggle between the Roman Catholic Church, the papacy and secular feudal lords (primarily monarchs) for the leading role in society. Accordingly, one of the central problems of the then political and legal knowledge turned out to be the question of which authority (organization) should have priority: spiritual (church) or secular (state).

Justifying the political claims of the church, its ideologists argued that the power of sovereigns comes from the church, and it received its authority directly from Christ. Hence the unconditional obligation of Christian sovereigns to obey the head of the Christian church. Various ideological currents in which protest was expressed against the dominance of the official church, the exploitation and arbitrariness of secular feudal lords (plebeian and burgher heresies), also generally did not go beyond the religious worldview. True, the socio-political programs that were born in the bosom of these opposition movements differed sharply from the socio-class attitudes of the ideologists of feudalism.

Forming and developing on the basis of feudal relations, under the colossal influence of Christianity, the Catholic Church, the political and legal knowledge of medieval Western Europe, at the same time, accepted and continued a number of significant ideas of ancient political and legal thought. Such ideas include, in particular, the notion of the state as a kind of organism, the provision on correct and incorrect state forms and their cycle, the idea of natural law as a norm arising from the nature of things, the position of the high importance of law for the organization of a normal state life and others.

15. THE DOCTRINE OF THOMAS AQUINA ON STATE AND LAW

The pinnacle of power in both the political and spiritual life of medieval Europe was reached by the papacy in the thirteenth century. Then the creation of the system of scholasticism was completed - Catholic theology, focused on justifying the postulates of faith by means of the human mind. An extremely important role in its construction was played by a Dominican monk, a theologian Thomas Aquinas (Aquinas) (1225-1274), whose writings were a kind of encyclopedia of the official church ideology of the Middle Ages. Along with a host of other subjects treated in these works, Aquinas, of course, also touches on issues of state, law, and justice. They are discussed in the work "On the reign of rulers" (1265-1266), in the work "The sum of theology" (1266-1274) and in other works. From Aristotle, Aquinas adopted the idea that man by nature is "a sociable and political animal." The desire to unite and live in the state is inherent in people, because the individual alone cannot satisfy his needs. For this natural reason, a political community (the state) arises. The procedure for the establishment of statehood is similar to the process of the creation of the world by God. In the act of creation, things first appear as such, then their differentiation follows according to the functions they perform within the boundaries of an internally dissected world order. The activity of a monarch is similar to the activity of a god. Before proceeding to the leadership of the world, God brings harmony and organization into it. So the monarch first of all establishes and arranges the state, and then begins to manage it.

The goal of statehood is the "common good", the provision of conditions for a decent, reasonable life. According to Aquinas, the realization of this goal presupposes the preservation of the feudal-estate hierarchy, the privileged position of persons in power and the rich, the exclusion from the sphere of politics of farmers, small artisans and merchants, the observance by all of the duty prescribed by God to obey the upper class - the rulers, personifying the state.

The essence of power is the order of relations of domination and subordination, in which the will of those at the top of the human hierarchy moves the lower strata of the population.

Aquinas distinguished tyranny from monarchy, which he regarded as the best form of government.

According to Thomas Aquinas, all laws are interconnected by threads of subordination. The pyramid of laws is crowned with an eternal law - universal norms, general principles of the divine mind that governs the universe. The eternal law is contained in God, identical to him; it exists by itself, and other kinds of laws are derived from it. First of all - the natural law, which is nothing but the reflection of the eternal law in the human mind, in the consciousness of thinking beings. Natural law prescribes to strive for self-preservation and procreation, obliges to seek the truth (God) and respect the dignity of people.

On the foundation of ethics, Aquinas built the concept of law. For him, it was primarily a sphere of truth and justice. Following the Roman jurists, he considered justice the constant desire to give each his own. An action that embodies such a desire and is equated with another action is right. Equalization of these two actions, occurring on the basis of their internal nature, gives a natural right. If equalization is carried out in accordance with human institutions, then positive law takes place. Both in his theory of law and in the concept of law, Thomas persistently pursued the idea that a human institution is legal (or rather, positive-legal) only when it does not contradict natural law.

16. MEDIEVAL HERESIES

The exploitation and violence, arbitrariness and inequality that took place in the Middle Ages provoked the protest of the oppressed. Given the dominant position of religion in the public consciousness of the Middle Ages, such a class protest could not help but take on a religious veneer. It took the form in Western Europe of various deviations from the doctrine and practice of the Roman Catholic Church, the papacy. Currents, opposition or directly hostile to the official dogma, received the name of heresies.

At the first stage of the evolution of feudal relations (late 5th - mid-11th centuries), the heresies that existed in Western Europe did not yet have a mass base. In the XI-XII centuries. there was a rise heretical movements. Quite large groups of people began to take part in them. The areas of their distribution were Northern Italy, Southern France, Flanders, and partly Germany - places of intensive urban development. One of the first major heretical movements that had a European resonance - Bogomilism (Bulgaria, X-XIII centuries). The Bogomil teaching reflected the sentiments of the enslaved Bulgarian peasants, who opposed feudal-church exploitation and national oppression of the country by the Byzantine Empire. Views similar to Bogomilism and growing on approximately the same social soil (with Bogomilism) were preached in Western Europe in the 1231th-1324th centuries. Cathars, Patarens, Albigensians, Waldensians, etc. The heresies were given an oppositional character primarily by the sharp criticism they contained of the contemporary Catholic Church. Its hierarchical structure and magnificent rituals, the wealth it unjustly acquired and the clergy mired in vice, who, according to the heretics, perverted the true teaching of Christ, were sharply condemned. The programs of heretical movements, which expressed the interests of the most disadvantaged, plebeian-peasant masses, called on believers to return to the early Christian organization of the church. The Bible became a formidable and powerful weapon in the hands of heretics in their struggle against the Roman Catholic Church. Then the latter simply forbade the laity (bull of Pope Gregory IX, 1384) to read the main book of Christianity. The most radical of heretical movements also adopted some of the ideas of Manichaeism. The Manichaeans declared the entire physical world (natural-cosmic and social, human) to be the creation of the devil, the eternal embodiment of evil, deserving only of contempt and destruction. In the XIV-XV centuries. In the general flow of oppositional heretical movements, two independent movements clearly emerged: the burgher and peasant-plebeian heresies. The first reflected the socio-political interests of the wealthy strata of the townspeople and the social groups adjacent to them. The burgher heresy was closely related to the burgher concepts of the state, in which the urgent need for the formation of a unified national statehood was theoretically comprehended. The political leitmotif of this heresy is the demand for a “cheap church,” which meant the abolition of the class of priests, the elimination of their privileges and wealth, and a return to the simple structure of the early Christian church. Prominent representatives of the burgher heresy are Doctor of Theology and Professor at Oxford University in England John Wycliffe (13711415-XNUMX) and Czech theologian Jan Hus (XNUMX-XNUMX). J. Wycliffe insisted on the independence of the English Church from the Roman Curia, disputed the principle of papal infallibility and objected to the interference of church circles in state affairs. Peasant-plebeian heretical movements of the XIV-XV centuries. represented in history by the performances of Lollards (mendicant priests) in England and Taborites in the Czech Republic. The Lollards advocated the transfer of land to peasant communities and the liberation of farmers from the shackles of serfdom; in practice they implemented the ascetic lifestyle of early Christians.

17. POLITICAL AND LEGAL DOCTRINE OF MARSILY OF PADUAN

In the XI-XIII centuries. in Western Europe there was a rapid growth of productive forces. Naturally, a social group began to take shape, which was formed mainly by the prosperous top of the burghers: merchants and bankers, entrepreneurs, workshop owners, heads of guild corporations, wealthy artisans, etc. This social group really needed to eliminate all kinds of civil strife that undermined the elementary order in the state a firm centralized government that could guarantee against the whims and willfulness of various feudal lords. She associated the satisfaction of such needs with the royal power and therefore began to gravitate towards it, to support it. One of the most developed political and legal justifications for this orientation of the burghers was given by Marsilius of Padua (c. 1275 - c. 1343).

In his extensive essay "Defender of the World" (1324-1326) Marsilius of Padua makes the church responsible for all the troubles and misfortunes of the world. They can be eliminated, if only from now on churchmen will deal exclusively with the sphere of the spiritual life of people. The church must be separated from the state and subject to secular political authority. This power and the state representing it arose, as Marsilius of Padua believed, in the process of a gradual complication of the forms of human community. At first, families in the name of the common good and with common consent unite into clans, clans into tribes. Then cities are consolidated in the same way and for the same purpose; the final stage is the emergence of a state based on the general consent of all its constituent persons and pursuing their common good. In this description of the origin and nature of the state, it is easy to recognize traces of the corresponding Aristotelian ideas.

Marsilius of Padua defended the thesis that the real source of all power is the people. From him comes both temporal and spiritual power. He alone is the bearer of sovereignty and the supreme legislator. True, by the people Marsilius of Padua did not mean the entire population of the state, but only the best, most worthy part of it. How deep it remained in the 14th century. The conviction in the natural inequality of people is evidenced by the fact that Marsilius of Padua divided members of society into two categories: higher and lower. The highest (military, priests, officials) serves the common good, the lower (merchants, farmers, artisans) takes care of their private interests. State power operates primarily through the issuance of laws. They are commands backed by the threat of real punishment or the promise of real reward. In this way, the laws of the state differ from the laws of God, accompanied by promises of rewards or punishments in the afterlife. The people have the right to make legal laws. Based on the political practice of the Italian city-states of that period, Marsilius of Padua specifies this fundamental prerogative in the sense that the people who are most deserving of such a mission, elected by the people, should legislate. Laws are binding both for the people themselves and for those who issue them. Marsilius of Padua clearly expressed the idea of the need to ensure a situation in which those in power would certainly be bound by the laws they themselves promulgate. The author of The Defender of Peace was one of the first to draw a clear distinction between the legislative and executive powers of the state. Marsilius of Padua gave an important place to election as a principle for the constitution of institutions and the selection of state officials of all ranks.

18. MEDIEVAL LEGAL THOUGHT

Jurisprudence revived in Western Europe in the XNUMXth century. This process was initiated Irnerius (1065-1125) school of glossators in Bologna. The purpose of this school was to study the primary sources of Roman law itself without other legal norms that were subsequently superimposed on it. Interest in Roman law was stimulated primarily by purely practical circumstances. As soon as industry and trade intensified economic activity, developed further private property, property turnover, carefully developed Roman private law was restored and again gained authority. The needs of the development of feudal statehood led to the fact that in some respects the public law of Ancient Rome was also received.

In the Western European Middle Ages, in addition to Roman law, there was also canonical (church) and customary law. Each of these three branches of law had its adherents. Adherents of Roman law ("legists") were not limited to studying and commenting on it alone, but were also engaged in adapting it to the economic and political changes that were objectively taking place in feudal society. Much was undertaken by them in order to withdraw the cause of justice from the hands of individual lords, the Roman Catholic Church, and to concentrate it in the hands of the royal, state power. In their support of the sovereigns who fought against the separatism of the feudal lords and the claims of the papacy to secular power, the lawyers of the considered direction went as far as justifying absolutism and recognizing the will of the monarch as a force higher and more authoritative than law.

Supporters of customary law were also allies of royal power. However, they generally had no intention of considering this power absolute and subordinating the law to it. In their opinion, the duty of the sovereign is to obey the law above it. The laws by which the sovereign should be guided when governing the country, should not be created by the sole command of the monarch. Adherents of customary law actively collected, studied and systematized legally significant norms, traditions, customs that spontaneously arose in public life, were created by judicial practice. Some of them put forward progressive socio-political demands. So , a prominent French jurist Philippe de Beaumanoir (1250-1296), the author of the work "Koutyumy Bovezi", protested against the preservation of serfdom in his contemporary society, supported the idea of \uXNUMXb\uXNUMXbthe legal consolidation of the country.

Lawyers who preferred canon law tried to build a single and effective legal complex, combining in it a number of prescriptions of the Bible, decisions of church councils, extracts from papal encyclicals and bulls, excerpts from the works of the "fathers of the church", some norms of Roman and customary law. The first set of canon law - the "Code of Gratian" - was compiled in the XII century. monk Gratian. The theoretical premise of canon law was the notion that the church legally has jurisdiction to judge and decide cases that are not only moral-religious, but also purely secular.

Each of the directions of legal thought of the Western European Middle Ages studied its own independent object, solved its directly practical problems, and had its own specific social meaning. At the same time, they had many common features in methodological terms. These features came from scholasticism, which determined the style of thinking of the overwhelming majority of scientists of the Middle Ages. We are talking about the manner of proving the truth of the propositions put forward by referring to authorities (God, Roman law, etc.). Medieval lawyers used mainly formal-logical methods of processing the material they studied.

19. FORMATION AND DEVELOPMENT OF MUSLIM LEGAL THOUGHT

Muslim law was formed during the period of decomposition of the tribal organization and the formation of feudal society in the Arab Caliphate in the 7th - 10th centuries. The emergence and development of Islamic law, its sources, structure and mechanism of action reflect the interaction of two principles - religious-ethical and legal itself. Thus, within Islamic law there are two groups of interrelated norms. The first group consists of the legal prescriptions of the Koran and Sunnah - a collection of legally significant traditions (hadith) about the actions, statements and even silence of the Prophet Muhammad. The second group consists of norms formulated by Muslim legal doctrine on the basis of “rational” sources, primarily the unanimous opinion (“ijma”) of the most authoritative jurists, and conclusions by analogy (“qiyas”). The norms of the first group, especially those recorded in the Koran, are considered fundamental. Over time, the insufficiency of the specific instructions of the Koran and Sunnah, as well as the normative decisions of the companions of the prophet, was felt more and more clearly. Therefore, starting from the 8th century. The main role in filling gaps and adapting the provisions of these sources to the needs of social development was gradually assumed by jurists - the founders of legal schools of interpretation and their followers.

By the beginning of the 8th century. Muslim legal doctrine was just beginning to take shape. The first step towards its emergence was “paradise” - a relatively free discretion that was used in interpreting the norms of the Koran and Sunnah and formulating new rules of conduct in case of their silence. Muslim legal scholars often cite a tradition indicating that the prophet strongly encouraged “ijtihad” - the free discretion of a judge in the event of silence from generally accepted sources of Islamic law. With the development of the theory of legal methodology, ijtihad began to mean the achievement of the highest level of knowledge, which gives the right to independently resolve issues not covered in the Koran and Sunnah, and mujtahids began to be called persons who received such a right.

The rapid development of ijtihad in the 699th-767th centuries. led to the fact that Muslim legal scholars formulated most of the specific norms and general principles of Islamic law. The role of the main source of Islamic law was assigned to its doctrine. From the 713th century Islamic law developed within the framework of several legal schools of thought. In various regions of the caliphate over the centuries, numerous schools (madhabs) of Muslim law of the Sunni (Hanifi, Maliki, Shafi'i, Hanbali, etc.) and Shia (Jafarite, Ismaili, Zaydi, etc.) directions, named after their founders - Abu Hanifa (795-767), Malik ben Anas (819-780), al-Shafi'i (855-XNUMX), Ben Hanbal (XNUMX-XNUMX), etc. These schools, with common starting positions, use various rational ways of formulating positive law and on their basis, various legal norms are applied on private issues. The Hanafi school, which is considered the most flexible among Muslim jurists, enjoys the greatest authority.

During the first two or three centuries of the “period of tradition,” the formation of Muslim law was generally completed, which practically became the law of one school or another. Muslim law assumed that legislative power belonged to the mujtahids. The concept of “supremacy of Sharia” was developed, according to which the head of state in all his actions is bound by the norms of Islamic law formulated by the mujtahids.

20. PROBLEMS OF THE STATE AND POLICY OF THE ARAB EAST

Within the framework of Islamic political thought, two main approaches to the study of state and politics have been formed - normative-legal and ethical-philosophical. The normative-legal direction was based on Islamic legal theory and developed without noticeable outside influence. The philosophical and ethical approach was unlikely to be deeply influenced by Muslim religious ideology. The doctrine of politics, state, and power was most thoroughly developed in medieval Arab philosophy Abu an-Nasrom al-Farabi (870-950). Significant contributions were also made by such major thinkers as the “Brothers of Purity” (10th century), Ibn Sina (980-1037) и Ibn Rushd (1126-1198). In their approach to political issues, representatives of medieval Arab-Muslim philosophy largely followed Greek philosophy, primarily the views of Plato and, to a lesser extent, Aristotle. Without making a strict distinction between politics, state and power, Arab philosophers proposed several options for defining politics and political knowledge. Thus, al-Farabi believed that political theory studies ways to organize and maintain virtuous government, shows how goodness and blessings come to city residents and what paths lead to their achievement and preservation.

He most fully outlined his political views in the treatises "On the views of the inhabitants of a virtuous city", "Aphorisms of a statesman" and "Civil policy". In them, he paid much attention to the art of supreme power, which creates the conditions for achieving happiness. A similar position was held by Ibn Rushd. Although he considered religion as a political art, necessary even in an ideal state, whose citizens should be guided by their dogma only because they can not all be attached to philosophical truth, at the same time he was convinced of the possibility of organizing social life on a solid foundation of knowledge. and removal from power of representatives of the clergy and theology. Only later in the Arab political thought began to appear indications of a direct connection between politics and Islam and the power of the ruler, based on the prescriptions of Islamic law. Consideration of politics from the standpoint of the Muslim religion and morality, an appeal to the analysis of power - all this quite naturally brought Arab philosophy closer to the study of the state that really existed at that time - the Arab Caliphate - in alliance with the Muslim legal doctrine. This approach was already manifested in the teachings of the "Brothers of Purity", who believed that only when Greek philosophy merges with Muslim law, perfection will be achieved in the study of politics.

The Muslim concept of the state was formed mainly in the XI-XIV centuries. and developed mainly within the framework of the science of Islamic law. Islamic law knows very little of the norms of the Koran and the Sunnah that regulate vertical power relations. These sources do not contain specific prescriptions regulating the organization and activities of the Muslim state or defining its content and essence. Moreover, the very term "state" is not used by them. There are only the concepts of "imamat" (original meaning - "guidance of prayer") and "caliphate" ("succession"), which only later began to be used to designate a Muslim state. The principles of the organization and functioning of the Caliphate were formulated by Muslim legal scholars hundreds of years after the Prophet Muhammad on the basis of a broad interpretation of the meager provisions of the Koran and the Sunnah regarding the Caliphate through the prism of comparing them with the practice of exercising supreme power by the prophet and righteous caliphs.

21. THE POLITICAL DOCTRINE OF IBN KHALDUN

Based on a comparison of the forms of executive power and the legal status of the head of the Muslim state at various stages of its development with political regimes in other states, Muslim political thought by the XNUMXth century. was able to develop a classification of forms of government, which is primarily associated with the name of an outstanding scientist Ibn Khaldun (1332-1406).

A distinctive feature of the teachings of Ibn Khaldun on the state and politics, set out by him in the famous treatise "Mukaddima" ("Introduction"), is a combination of philosophical and legal approaches to the state against the general background of historical and sociological analysis. First of all, he set the task of revealing the "natural laws" of the formation, development and fall of the state, which he considered as an indicator, form, criterion and manifestation of "civilization". Another characteristic feature of his theory was that the scientist studied not an ideal, but a real-life Muslim state already at a time when the rulers in their policies had departed far from the principles of Muslim law. He traced the historical evolution of the caliphate and developed an original classification of forms of government. According to the teachings of Ibn Khaldun, any society, due to the nature of man himself, needs a “restraining principle” designed to resist the “natural” desire of people for aggression and mutual destruction. Such coercive power distinguishes the state from simple "leadership" of the tribe and is an indicator of the level of civilization achieved by one or another people. The state suppresses the members of society, rallies the tribes into a single whole and exercises coercive power both in relation to its subjects and in the external sphere. The "internal" side of this power lies in the omnipotence of the ruler, who is able to control his subjects by force, implement laws, ensure order within the state, collect taxes and form an army. Outwardly, the supreme power of the state is manifested in its non-subordination to any other authority or coercion. State policy, according to Ibn Khaldun, is not limited to rulers alone, but includes the participation of all subjects in it. Therefore, all changes in the state are associated not only with changes in the position of the head of state, but of the whole society as a whole. The state itself has a certain time frame of existence, determined by the age of three generations. During this period, it goes through five stages of development: the emergence of a new coercive power to replace the old one; the concentration of supreme power in one hand after the ruler has dealt with all his associates who helped him come to power; the flourishing of a state dominated by order, calmness and confidence; the transition to violence and despotic methods of government to suppress opposition; the decline and fall of the state. Ibn Khaldun not only considered the question of the stages of development of the state in a theoretical plane, but also tried to apply his theory to the analysis of the historical evolution of the caliphate, its transformation into a monarchy. He considered the main reason for such a transformation to be the crisis of the social conditions of the existence of the community, when "faith was replaced by the sword" as the principle that unites Muslims. As a result, if at first the caliphate was devoid of signs of a monarchy, then gradually the form of government of the Muslim state began to combine the features of the caliphate and the monarchy and eventually turned into a monarchy in the full sense.

22. HISTORICAL FATE OF THE MUSLIM POLITICAL AND LEGAL DOCTRINE

More than three and a half centuries following the Ottoman conquest at the beginning of the XNUMXth century. most of the Arab world, have not left a noticeable mark in the history of Muslim political thought. The traditional character of Muslim political views remained unchanged throughout the first half of the XNUMXth century. - in a period when in the Arab countries as a whole the religious worldview prevailed, and the political traditions consecrated by Ottoman Islam remained practically untouched. The turning point came only towards the end of the century. The founder of the ideological current of the Islamic Reformation is considered to be Jemal ad-Din al-Afghani (1839-1897), whose early years were spent in Afghanistan. Al-Afghani's political and legal views are based on his general approach to Islam. Resolutely rejecting atheism, al-Afghani defended the revival of Islam, liberating it from “innovations” that distorted its true essence and led Muslims to backwardness. In his opinion, a rational interpretation of the Koran allows us to understand the foundations of an ideal social and political system. Returning in search of a better model of the state to the Koranic principles of power, al-Afghani unconditionally rejected absolutism. The power of a strong, fair monarch must be balanced by institutions such as the constitution and parliament, which ensure the participation of the people in the exercise of power. The influence of Islam on al-Afghani's political and legal views was clearly manifested in his views on Sharia. Attaching particular importance to Sharia, al-Afghani considered it as the main force guiding the lives of Muslims, and the degree of compliance with its norms was considered the only criterion for differences between people.

End of the 1922th century was a turning point in the evolution of Islamic political and legal ideas in the Arab East. The concepts and approaches to the analysis of state and law put forward at this time predetermined the development of Arab-Islamic political and legal thought. Classical Muslim political theory again came to the fore with the separation of church and state in Kemalist Turkey in XNUMX and the official abolition of the caliphate two years later. The question of the essence of the caliphate was at the center of a heated debate. The most serious theoretical and religious arguments in favor of the revival of the caliphate were put forward by Muhammad Rashid Rida (1865-1935), who published the famous treatise “Caliphate, or the Great Imamate” in 1922, which is now considered a fundamental study on the Muslim theory of the state. In his book, Rashid Rida sought to restore the “true” concept of the caliphate without distortions and falsifications introduced into it to please short-sighted rulers, and on this basis to prove the advantage of the caliphate over other forms of government, to contrast the Muslim legal institution of consultation with the European principles of democracy. Rashid Rida's research was perhaps the last serious attempt to revive the classical concept of the caliphate in its most complete form and, most importantly, to prove on this basis the need for a return to the Muslim form of government. Subsequently, a directly opposite theory of the Muslim state arose, according to which the caliphate has nothing to do with Islam. This point of view was most persistently defended by the sheikh of the Egyptian Muslim University Al-Azhar Ali Abdel Razek (1888-1966) in his book “Islam and the Foundations of Power,” published in 1925.

23. POLITICAL AND LEGAL IDEAS IN THE "WORD ABOUT LAW AND GRACE"

The genesis of Russian political thought is usually associated with the emergence and development of the Old Russian state. In the XI-XII centuries. The Old Russian state experienced its cultural heyday. The adoption of Christianity and the spread of writing led to the emergence of a variety of historical and legal works of a wide variety of genres (chronicles, treatises, legal collections, etc.). The reign was marked by a cultural upsurge Yaroslav the Wise (1019-1054). An active political and legal life (veche meetings in cities, the adoption of a legal collection - Russian Pravda, relations with other countries) contributed to the development of political and legal thinking.

The first Russian political treatise, The Word of Law and Grace, was written in the XNUMXth century. Metropolitan of Kyiv Hilarion, about which it is known from the meager chronicle description: “Larion is a good man, a learned man and a faster.” He begins his work by clarifying the interaction between Law and Truth. Medieval culture is characterized by the use of the term “law” in theological and legal meaning, since the law is considered as a conductor of someone else’s will: God or the Master (in this case, the sovereign). Truth is associated with the achievement by a Christian of a high moral status associated with the comprehension of the New Testament Teaching and the embodiment of its requirements directly in his “information” and activities. Anyone who lives according to the postulates of the New Testament does not need the regulatory action of laws, for internal moral perfection allows him to freely realize (according to the Truth) his will. According to Hilarion, the Law is called upon to determine the external actions of people at that stage of their development, when they have not yet reached perfection; it is given to them only “for the preparation of Grace and Truth.” It is thanks to the sub-legal state that humanity is able to avoid mutual destruction, since first, like a “bad vessel”, it is washed with “water-law”, and then becomes able to contain the “milk of Grace”. Law and Truth are not opposed to each other - on the contrary, they are shown in interaction, and with a given sequence. Hilarion associates the law-abiding and moral behavior of a person in society with the comprehension of Truth and the achievement of Grace as the ideal of a Christian. In the dissemination of the moral and ethical ideal of Christianity, the Kiev Metropolitan sees the path to the improvement of humanity and the replacement of the Law (Old Testament) with the Truth (New Testament). “The Word of Law and Grace” affirms the idea of the equality of all peoples living on earth, emphasizing that the time of the chosenness of one people has passed. God makes no distinction between a Greek, a Jew and any other people, for his teaching applies equally to all people without exception, regardless of race, gender, age and social status. Hilarion condemns Byzantine claims to hegemony throughout the Christian world. In “The Lay...” he seeks to show the international significance of the Russian state as equal in rights among other Western and Eastern countries. Prince Vladimir ruled not in the “bad land,” but in the one that is “known and heard by all four ends of the earth.” Hilarion characterizes him as “the sole ruler of the whole earth,” who managed to “conquer its surrounding countries” (in this case, parts of the Russian land). The power of the Grand Duke is strong and based on “truth”. In Yaroslav, Hilarion sees the successor of Svyatoslav and Vladimir. He sees the source of supreme power in the divine will, therefore the Grand Duke himself is perceived as a “participant in the Divine Kingdom,” obligated before God to answer “for the work of his flock of people,” to ensure peace (“drive away the military, establish peace, shorten the countries”) and good governance (“Glady Ugobzi... the Bolyars became wise, the cities were dispersed”).

24. POLITICAL PROGRAM OF VLADIMIR MONOMAKH

Russian political thought receives significant development in the works Vladimir Monomakh (1053-1125).

В 1113 BC during the great Kyiv uprising, the son of the Grand Duke was invited to the Kyiv throne Vsevolod and grandson Yaroslav the Wise -

Vladimir Monomakh, who actually participated in government under his father Vsevolod, and then had a great influence on state affairs under the Grand Duke Svyatopolka and also became famous for military campaigns and victories over the Polovtsians.

The political program of Monomakh is formulated in his writings: "Teaching children", "Message to Oleg Chernigovsky" и "Excerpt" (autobiography), which touched upon a wide range of issues: the scope of the powers of the Grand Duke, the relationship between church and state, the principles of the administration of justice in the country.

The political content of his views is most clearly presented in the Teaching, where the leading place is occupied by the problem of organizing and exercising supreme power. Monomakh advises future grand dukes to decide all matters together with Council of the squad, not to allow “lawlessness” and “untruth” in the country, to administer justice “in truth.” Monomakh proposed that the prince carry out judicial functions himself, not allowing violations of laws and showing mercy to the most defenseless segments of the population (poor smerdas, wretched widows, orphans, etc.). His denial of blood feud resulted in his complete rejection of the death penalty: “Don’t kill him right or wrong, and don’t order him to be killed.” Even if, due to the gravity of his deeds, someone is worthy of death (“even if he is guilty of death”), still, “do not let any peasant walk around.”

The call not to "revenge" is considered in the "Instruction" not only as a principle of legislation, but also as the basis of inter-princely relations.

Monomakh is developing a further staged Ila-rion the problem of the Grand Duke's responsibility to his subjects. He speaks about it when resolving the issue of governing the country, organizing justice and the need for military action. In all disputable cases, he advises to give preference to peace, since he sees no reason for fratricidal wars, since all peoples have a place on earth, and rulers should direct their efforts to finding ways to achieve peace. All disputes can be resolved "good" in the event that dissatisfied princes write a "letter" with their claims. With those who yearn for war ("men of blood"), worthy princes are not on the way, for revenge should not be the defining motive in politics.

When deciding on the relationship between the secular and spiritual authorities, Monomakh assigns an honorary, but clearly subordinate place to the church. He "honored the black and priestly rank", but nevertheless gave preference to worldly people who are trying to help their country and people with a "small good deed" over monks who endure "loneliness, blackness and hunger" in search of personal salvation.

With the process of feudal fragmentation that began shortly after the death of Monomakh (1125) and his son Mstislav (1132), public opinion could not come to terms for a long time. Brought up in the best traditions of ancient Russian thought, the ideal of which was the preservation of the unity of the Russian land, the thinkers tried to prevent or at least slow down the disintegration of the unified Russian state into separate state-principalities.

25. POLITICAL AND LEGAL VIEWS OF DANIIL ZATOCCHNIK

The traditions of Russian political thought of the pre-Mongolian period found their expression in a work attributed to Daniil Zatochnik and appeared during the period of feudal fragmentation.

Daniel's work expressed tendencies aimed at strengthening the grand prince's power, capable of overcoming internal strife and preparing the country for defense against conquerors. Daniel belonged to privileged circles, but his personal fate was unsuccessful, and he had to experience the disgrace of the ruler. It is quite possible that Daniel committed some misdeeds and experienced severe princely disfavor associated with a change in class status, because he found himself in great need, sadness and “under the yoke of slavery,” and perhaps even with restrictions on personal freedom. The change in class status allowed him to better understand modern socio-political reality, intertwining his personal fate with the fate of his land. The central political idea of the work, its core is the image of the Grand Duke. He is clearly idealized in the traditions developed in Russian political literature. The prince is attractive in appearance, he is merciful (his hand is always “outstretched to give alms to the poor”). The prince's rule is strong and fair. The prince acts as the supreme head of all his people (“the head of the ship is the helmsman, and you, prince, are the head of your people”); if his power is poorly organized and there is no order and management in the power, but on the contrary, there is “lack of order” - in this case, a strong state can perish, therefore, not only the supremacy of the prince is important, but also well-organized management.

In the spirit of the traditions of Russian political thought, Daniel consistently pursues the idea of the need for the prince to have "duma members" with him and rely on their Council (Duma). Advisors must be smart and fair and always act according to the law ("truth"), and the prince must be able to choose them. It is not necessary to involve only the old and experienced, because the point is not in age and experience, but in the mind. The author himself has a "young age", but he has an "old sense". These provisions clearly show that Daniel's form of power is close to Monomakh's ideal: the Grand Duke decides matters with wise advisers, and such an order strengthens the "city and regiments" of the "power". The prince must have a good army, since his "wealth is in the multitude of brave and wise people." He should not boast of gold and silver, "but of many wars." Daniel also speaks of the need for a "royal thunderstorm", but this thunderstorm is not the realization of autocracy, but, on the contrary, a sign of the capacity and reliability of the supreme power for subjects, since it is them that the "royal thunderstorm" protects "like a solid fence." It is directed not against the subjects, but in their defense. "Thunderstorm" is effective not only against external enemies, but also against persons who create lawlessness within the country, and with its help, violated justice should be restored. Such a formulation of the question naturally implies a punishment for all those who do "untruth". Boyar arbitrariness is condemned by the author. It is lawless, unfair, gives rise to disorder in the state. The boyar and the prince are opposed to each other with a clear preference for the latter. Boyar dominance leads to direct damage to the supreme power. These words clearly testify to Daniil's condemnation of the policy of feudal fragmentation and the desire to see his state as strong, united, ruled by a wise and courageous prince, relying on the Council of "Dumists" and representing with his power the support and protection of all subjects. Moreover, he is only interested in the protection and defense of his land, and not in aggressive campaigns, which often end fatally. Daniil's support of strong grand ducal power implied limiting the powers of local feudal lords, which corresponded to the main task of that time - the unification of all Russian lands under the rule of the grand duke.

26. POLITICAL AND LEGAL IDEAS OF REFORMATION

Renaissance and Reformation - the largest and most significant events of the late Western European Middle Ages. Despite their chronological belonging to the era of feudalism, they were essentially anti-feudal, early bourgeois phenomena that undermined the foundations of the old, medieval world. A break with the dominant, but already turning into an anachronism, feudal way of life, the establishment of fundamentally new standards of human existence - that was the main content of the Renaissance and the Reformation. This content changed and developed, acquiring in each of the countries of Western Europe specific features, national and cultural coloring.

The Renaissance and Reformation are characterized by such common points as: the breakdown of feudal and the emergence of early capitalist relations, the strengthening of the authority of the bourgeois layers of society, a critical revision of religious teachings, a serious shift towards secularization, the “secularization” of public consciousness. Being anti-feudal, pro-bourgeois phenomena in their socio-historical meaning, the Renaissance and Reformation in their highest results surpassed the spirit of bourgeoisism and went beyond its limits. The ideologists of the Renaissance and Reformation did not simply draw the ideas they required about the state, law, politics, law, etc. from the treasury of the spiritual culture of ancient civilization. Their demonstrative appeal to the era of Antiquity was, first of all, an expression of rejection and denial of the political and legal orders and doctrines of feudal society that were dominant and sanctioned by Catholicism. It was this attitude that ultimately determined the direction of the search in the ancient heritage for state studies ideas, theoretical and legal constructions (models) needed to solve new historical problems that faced the people of the Renaissance and Reformation. This attitude also determined the nature of the interpretations of the corresponding political and legal views and influenced the choice of forms of practical application of them. In the struggle against the medieval conservative-protective ideology, a system of qualitatively different social and philosophical views arose. Its core was the idea of the need to affirm the intrinsic value of the individual, recognize the dignity and autonomy of every individual, provide conditions for the free development of man, and provide everyone with the opportunity to achieve their own happiness on their own. Such a humanistic mood of the emerging system of social and philosophical views prompted us to find prototypes in tune with the mentioned mood in the ancient worldview. It was believed that the fate of a person should be predetermined not by his nobility, origin, rank, confessional status, but by his personal valor, demonstrated by activity, nobility in deeds and thoughts. The Reformation recognized a certain value of earthly life and the practical activities of people, the right of a person to make decisions on issues important to him, and partly paid tribute to the certain role of secular institutions. Pre-Christian and non-Christian authors had some influence on the political-legal thought of the Reformation. But still, its main source was the Holy Scripture, the Bible (especially the New Testament). The originality and greatness of many ideas of the Renaissance and Reformation lies in the fact that they are still open to the perception of universal sociocultural values and favoring them.

27. NEW SCIENCE OF POLITICS by N. Machiavelli

Niccolò Machiavelli (1469-1527) a great connoisseur of ancient literature, diplomat and politician, entered the history of political and legal thought as the author of a number of remarkable works: "The Sovereign" (1513), "Discourses on the first decade of Titus Livius" (1519), "History of Florence" (first edition - 1532) and others. Researchers agree that the creative heritage of Machiavelli is very contradictory in its spiritual content. The explanation for this is sought in the character of the writer's personality itself, in the influence on him of the dramatically complex era, of which he was a contemporary. His fiery love for the fatherland is also noted. The introduction of the very term stato, i.e. "state", into the political science of modern times is associated with Machiavelli, he acts as a monopolist of public-power prerogatives. It is interpreted in the "Sovereign" mainly in the meaning of the apparatus that controls the subjects, society. Such a state apparatus includes the sovereign and his ministers, officials, advisers, and other officials; in other words, what in modern parlance might be called the central administration. This apparatus, or rather, of course, the sovereign who controls it, has public power - the right to command the state at his own discretion. The sovereign must not allow the political power in the country to be in someone else's hands; he is obliged to concentrate it all only in himself. Machiavelli gives his sympathies to those single-handedly ruled states, "where the sovereign rules surrounded by servants who, by his grace and permission, are placed in the highest positions, help him manage the state."

Machiavelli has a negative attitude towards the fact that the sovereign, when making decisions, is limited by someone else's will and experiences pressure from outside interests. The essence of power, the autocracy of the sovereign lies in the fact that everything in the state is determined only by his own discretion. The idea of the people as the bearer, the source of supreme power is also completely alien to Machiavelli. There is not a word about the rights of the people to govern the state, even to their minimal involvement in the independent administration of state affairs. In the political sphere, the people should be a passive mass, transformed by all kinds of manipulations on the part of sovereigns into a convenient and obedient object of state power. The range of benefits flowing from the state to its subjects is narrow. Military and police security measures, patronage of crafts, agriculture and trade - that's almost all. In this set, for example, there is no place for granting subjects guaranteed rights and freedoms, especially political ones. Machiavelli is well aware that an indispensable condition for the exercise of political power in forms pleasing to the sovereign is the consent of his subjects. He literally begs the ruler not to incur their antipathy under any circumstances. To win the favor of the people is his task. He must take measures to ensure that citizens always and under any circumstances have a need for him. If people are alienated from it, then in this case the people are doomed - they are plunged into the abyss of anarchy and disorder.

The origins of Machiavelli's discord with humanism lie in the tragic discrepancy between two qualitatively different dimensions, two different ways of social life: ethical and political. Each of them has its own criteria: "good" - "evil" for the first, "benefit" - "harm" for the second. The merit of Machiavelli is that he sharpened to the limit and fearlessly expressed this objectively existing correlation of politics and morality.

28. BODEN AND HIS DOCTRINE OF THE STATE

Jean Bodin (1530-1596) - an outstanding French political thinker. His views on the state, on the ways and methods of strengthening the centralized monarchical power are set out in his main work "Six Books of the Republic" (1576). “Republic” here means the same thing that was meant by this word in Ancient Rome, that is, the state in general. According to Bodin, “the state is the government of many families and that which is common to them all, carried out by a sovereign power in accordance with law.” In fact, all of the “Six Books on the Republic” are devoted to revealing the meaning and content of this definition. The first examines the foundations of social community. In the second - the forms of the state. The third is institutions. In the fourth - changes in the structure of the state and control over them. The fifth is adaptation to circumstances and the tasks of the state. The sixth and last one deals with the means of power and the question of the best state form. For Boden, the unit of the state is the family (household). In terms of his status, the head of the family is the prototype and reflection of state power. Statehood as an organization arises through contract, and its highest goal is not to ensure the external well-being of people, but to ensure the true happiness of individuals by guaranteeing peace within the community and protecting the community from attack from without. The latter traditionally consists in the knowledge of God, man and nature, and ultimately in the veneration of God. The development of the problem of state sovereignty is Boden’s greatest contribution to the development of political theoretical knowledge. The absoluteness of sovereignty occurs when the sovereign power does not know any restrictions on the manifestation of its power. Permanence of sovereignty occurs when sovereign power exists unchanged for an indefinite period; a temporary power cannot be maintained as a supreme power. Boden highlights five hallmarks of sovereignty. The first of them is the publication of laws addressed to all subjects and state institutions without exception. The second is resolving issues of war and peace. The third is the appointment of officials. The fourth is acting as the highest court, the court of last resort. Fifth - pardon.

By way of exercising power Boden divides all states into three types: legal, patrimonial (seigneurial), tyrannical. A state is lawful in which the subjects obey the laws of the sovereign, and the sovereign himself obeys the laws of nature, while preserving for his subjects their natural freedom and property. The patrimonial states are those in which the sovereign, by force of arms, has become the owner of property and people and rules over them like a father of a family. In tyrannical states, the sovereign despises natural laws, disposing of free people as slaves, and their property as his own. The best, according to Boden, is such a state in which sovereignty belongs to the monarch, and management has an aristocratic and democratic character. He calls such a state a royal monarchy. The ideal for a country is such a monarch who fears God, "merciful to the guilty, prudent in enterprises, bold in the implementation of plans, moderate in success, firm in misfortune, unshakable in this word, wise in advice, caring for subjects, attentive to friends, terrible to enemies, kind to those disposed towards him, formidable to the evil and fair to all. Bodin strives for harmonic justice. For him, it is the distribution of rewards and punishments and what belongs to everyone as his right, performed on the basis of an approach that includes the principles of equality and similarity.

29. POLITICAL AND LEGAL IDEAS OF EUROPEAN SOCIALISM XVI-XVII CENTURIES

Questions of power, state and law acquire a special anti-bourgeois meaning within the framework of socialism. It was in the XVI-XVII centuries. he began to occupy a fairly prominent place in the intellectual life of European society. Socialist thinkers turn to the problems of the state, law, and power in search of an answer to the question of what political and legal institutions should be that can adequately embody a system based on the community of property that has done away with private property, with material inequality between people, with the former tyrannical forms of government. Within this movement, which expressed the age-old aspirations of the lower classes for social justice, very different views took shape and circulated. These ideological formations differ from each other not only because the projects they defend for organizing the public authorities of the future are not the same. The principle contained in them is also different, in accordance with which a new world order should be created and function. In some cases, rationality is put forward to the forefront, in others - freedom, in others - equality, etc. The most prominent writers of the socialist trend in the period under review were Thomas More (1478-1535) и Tommaso Campanella (1568-1639). T. Mop is the author of the epoch-making work “Utopia” (1516). T. Campanella created the world famous "City of the Sun" (1602, first publication - 1623). Such works are permeated by sharp criticism of social and state-legal orders, hatred of the social order, political and legal institutions generated by private property and protecting it. It is blamed for the poverty of the masses, crime, injustice, etc. T. More argues that as long as private property exists, there is no chance of recovery of the social organism. Society is the result of a conspiracy of the rich. The state is their simple instrument. They use it to oppress the people, to protect their selfish material interests. By force, cunning and deception, the rich subjugate the poor people and dispossess them. The presence of the institution of slavery in Utopia seems paradoxical. According to T. More, in this ideal country there should be slaves, and they would also be required to wear shackles. It is unthinkable that the joy of life of the Utopians would be overshadowed by the need to perform various unpleasant jobs: slaughtering livestock, removing sewage, etc. Prisoners of war, criminals serving their sentences, as well as people sentenced to death in other states and ransomed by the Utopians became slaves.

Unlike More, T. Campanella in "The City of the Sun" does not openly castigate socio-economic and political-legal orders that are unacceptable to him, but criticizes them, as it were, "behind the scenes", in the subtext. In the foreground, he exposes the panorama of the life of the solarium city-state. The system of public authority in it consists of three branches based on three main activities. This is, firstly, military affairs; second, science; thirdly, the reproduction of the population, providing it with food and clothing, as well as the education of citizens. The branches (branches) of power are led by three rulers, named respectively: Power, Wisdom, Love. Three chiefs are directly subordinate to them, each of which, in turn, disposes of three officials. The administrative pyramid is crowned by the supreme ruler - the Metaphysician, who surpasses all fellow citizens in learning, talents, experience, and skill.

30. POLITICAL AND LEGAL VIEWS OF FEDOR KARPOV

The united sovereign state no longer corresponded to such a form of power as the early feudal monarchy. There was a need for changes in the organization of power and the state structure. Interest in these issues can be seen in the works Fyodor Karpov - publicist and diplomat late XV - early XVI centuries., close to Maxim the Greek and his entourage. His political views are set forth in the Epistle to Metropolitan Daniel. It was written around the 30s. XVI century., When there was already a trend towards the formation of class-representative institutions and institutions in the country. In all the statements of the thinker, there is an approval of the emerging representative forms of the organization of power. He systematically uses such terminology as "kings and chiefs", "rulers and princes". Arguing the position on the need for supreme power in human society, Karpov, referring to Aristotle, proves that "every city and every kingdom ... should be ruled by pityers, therefore countries and peoples need kings and leaders. He gives the combination of kings and chiefs in a poetic image of the consonant unity of the harp and the harp. Also noteworthy is the publicist's repeated use of such an expression as "the cause of the people" (the term itself resembles a tracing translation from the Latin respublica, which Cicero meant property, the business of members of the Roman community). Karpov also reproduces a classification of the forms of the state close to Cicero: "people's business" (republic) and kingdom (monarchy), which indicates his acquaintance with the works of Cicero, and in particular with the latter's ideas about the ideal variant of the political organization of society, in which it is supposed to achieve the consent of all its members in the management of common affairs. References to the works of Aristotle and Cicero, which contain a preference for a republican form of government with an elected magistracy, as well as direct borrowing of their terminology, are indirect but significant evidence of Karpov's sympathy for the collegial, rather than the individual principle in the organization of forms of power. Karpov was also interested in ways to ensure legal forms of exercising power. He argued that all relations between people in society should be regulated only by legal norms. Religious morality cannot replace the law, therefore Karpov denies the possibility of influencing the behavior of citizens with the help of such a religious and ethical category as "patience", which can only take place outside the monastery walls. All activities of the state, both in the judicial and non-judicial spheres, must be carried out on the basis of existing laws. Karpov's categories of justice and law are combined. Following Aristotle, he argues that everything legal must necessarily be just. An unfair and illegal distribution of goods can cause serious discontent among subjects, as a result of which people will no longer be obedient to their sovereign. Based on these provisions, he puts forward the demand for fair pay for all workers, highlighting military services. Compliance with laws is not only the basis of the well-being of the state, but also the moral basis of public life. Lawlessness Karpov connects with the decline of morality. He does not even allow the thought of the possibility of a supra-legal position of supreme power. "According to Aristotle, every kingdom," he writes, "should be governed in truth and by certain just laws." "Truth" and "certain laws" are used here in the sense of law and the legislation based on it. "Pravda" is implemented by the court - this provision is quite consistent with the idea of M.

From the end of the XV century. the economic position of the church and its property rights, in particular the right to own inhabited lands and use the forced labor of the peasants living on it, began to cause sharp controversy. At the same time, the claims of the church to interfere in the political life of the country were actively discussed. The direction of political thought, which proposed the reorganization of the activities of the church and demanded the rejection of land holdings from it, and also categorically denied the possibility of interference by the church in the political activities of the state, was called "non-acquisitiveness". On the contrary, adherents of preserving the existing forms of church organization and its economic status began to be called money-grubbing, which corresponded to the essential expression of their position. Representatives of both of these schools of thought belonged to intra-church circles and set themselves the task of improving the work of the entire church organization, but had different ideas about the ideals of monastic service and the status of the monastery.

The founder of the doctrine of non-possession is considered to be an old man Nile of Sorsky (1433-1508), about which little is known. He settled far beyond the Volga, in the swampy side of the Vologda region, where he organized his Nilo-Sora desert, in which he realized the ideal of desert living. The concept of Nil Sorsky largely coincides with the provisions of the school of natural law. He views a person as an unchanging quantity with passions inherent in it “from time immemorial,” the most destructive of which is the love of money, which by its nature is unusual for man and arose under the influence of the external environment; The task of an Orthodox Christian is to overcome it.

The teachings of the Nile were developed by his student and follower Vassian Patrikeev. He raised the issue of eliminating monasticism as an institution, delimiting the spheres of activity of church and state, and prohibiting persecution for beliefs. Vassian also defended the interests of the black-growing peasants who suffered from the monastic land expansion. The main provisions of the doctrine of non-covetousness were most fully developed Maximus the Greek (d. 1556), whose real name is Mikhail Trivolis. He was born into a noble family in Greece at the end of the 1439th century. He paid much attention to issues of legality in the actions of the supreme power, the structure of justice in the country, determining the course of foreign policy, problems of war and peace. The acquisitive (or Josephite) position is represented by the founder of this school of thought, Joseph Volotsky (1515-XNUMX), one of the significant figures of his era, whose work had a great influence not only on the formation of doctrines about state and law, but also directly on the process of building Russian statehood. Throughout his life and career, Joseph Volotsky changed his political orientation, which could not but affect the content of his teaching. Central to political theory Joseph Volotsky is the doctrine of power. He adheres to traditional views in determining the essence of power, but proposes to separate the idea of power as a divine institution from the fact of its implementation by a certain person - the head of state. The ruler fulfills the divine destiny, while remaining a simple person who, like all people on earth, makes mistakes that can destroy not only himself, but the whole people. Therefore, one should not always obey the king or prince. Power is indisputable only if its bearer can subordinate his personal passions to the main task of using power - to ensure the welfare of his subjects.

32. POLITICAL CONCEPT OF FILOTHEIA - "MOSCOW - THE THIRD ROME"

The author of the theory, which went down in the history of political thought under the name “Moscow the Third Rome,” was a Josephite in its ideological orientation. His teaching developed and clarified the main Josephite ideas about the nature of royal power, its purpose, relationships with subjects and the church organization. About the author himself, a monk (or perhaps abbot) of the Pskov Elizarov Monastery Filofee, little is known. Philotheus worked out in most detail the question of the significance of legitimate royal power for the entire Russian land. In the Epistle to the Grand Duke Vasily Ivanovich, he traces the dynastic genealogy of the Russian princes to the Byzantine emperors, indicating to Vasily III that he should rule according to the commandments, the beginning of which was laid by great great-grandfathers, among which are called "the great Constantine ... Blessed Saint Vladimir and the great and God-chosen Yaroslav and others. He paid much attention to the theme of the divine origin of royal power. Filofei repeatedly refers to the description of the image of the holder of supreme power, resolving it traditionally. The king is strict towards all who deviate from the "truth", but caring and fair towards all his subjects. The high idea of royal power is confirmed by the demands of unconditional obedience to it on the part of subjects. The duty of the sovereign is to take care not only of his subjects, but also of churches and monasteries. The spiritual authority is subordinate to the secular, however, with the reserving of the right of the spiritual shepherds to "tell the truth" to persons vested with high power. He, like his predecessors, insists on the need for legal forms of exercise of power. In his messages, Filofey rose to an understanding of the historical prospects for the political development of Russia, he saw and understood the significance of the unification policy and its immediate and long-term consequences. An analysis of the historical events contemporary to the thinker that determined the fate of his homeland in the acute political situation of the late XNUMXth - early XNUMXth centuries leads the author to the conclusion that it is now that the moment has come when Russia has become an object of supreme providence. Its fate cannot be presented to a religious thinker separately from the fate of the Orthodox Christian religion. Only a state faithful to Orthodoxy can be the object of God's providence, and at the moment, Filofei believed, there is all the evidence that Russia has become it. Having remained faithful to Orthodoxy, Russia is invincible, she threw off the Tatar yoke, now she successfully defends her borders and rises in the eyes of her contemporaries also thanks to her success in the diplomatic field. Philotheus compares the greatness and glory of Russia with the greatness and glory of Rome, and especially Byzantium. Its brilliance, glory and power did not disappear, but passed to the country headed by the great Russian prince. The formula of the "third Rome" developed by Philotheus into political theory was not new to the literature of the XNUMXth-XNUMXth centuries. Legends about the inheritance of religious and political greatness by this or that country were known even in Byzantium. Filofey's pen brought them closer to the modern conditions of the political and legal life of Russian society. Filofei's political program is not limited to questions relating to the organization and activities of the all-Russian state structure under the leadership of a single Grand Duke (and then the Tsar). Great attention was paid by Philotheus to the forms of ideological influence on the population by the state authorities, to the issues of the internal freedom of the Orthodox Christian in the state. He strongly condemned freedom of opinion and scientific research. The visible world, in his opinion, not only should not be transformed, but even studied is a sin.

33. POLITICAL PROGRAM I.S. PERESVETOV

A broad program of political and legal reforms was proposed in the middle of the XNUMXth century. service nobleman Ivan Semenovich Peresvetov. In his political theory, he examined issues related to the form of government and the scope of powers of the supreme power, the organization of the all-Russian army, and the creation of a unified legislation implemented by a centralized judicial system. In the field of managing the country's internal affairs, he provided for financial reform, the elimination of governorships and some measures to streamline trade. The amazing foresight of his political thinking lay in the fact that in his theoretical scheme he determined the structure and form of activity of the leading links of the state apparatus, outlining the main line of further state construction, predicting the paths of its development. In 1549 I.S. Peresvetov submitted two petitions to Ivan IV (Small and Large) with projects for various state and social reforms.

In Peresvetov’s system of views, significant attention is paid to determining the best option for organizing state power. The question of the form of government began to be discussed in journalism much earlier than Peresvetov’s speech. Thinkers of the XV-XVI centuries. understood autocracy as the unity of state power, its supremacy, but not as the unlimited power of the tsar, not as self-will. Monocracy as the best form of state power and government was not questioned. The autocracy of the boyars was quite widely condemned in various political works of the era. Peresvetov noted the unjust ways of enriching nobles, leading to the impoverishment of the country; mutual quarrels between them. He substantiates the need to create a national treasury, designed to replace the viceroyal order of collecting and distributing income. I.S. Peresvetov proposes the complete elimination of vicegerency. Peresvetov consistently pursues the principle of assessing personal merit, encouraging diligence and talents as opposed to the parochial system of hierarchical distribution of benefits and honors. Peresvetov provides fundamental arguments in favor of the abolition of servitude. So he condemns the very principle of enslavement as incompatible with Christian morality. Analyzing the foreign policy of the Russian state, Peresvetov saw one of its most pressing tasks in the capture of Kazan. This action seemed to him necessary to sum up the results of the territorial unification of the state. Peresvetov consistently pursues the idea of implementing the rule of law in all forms of social and state activity. They paid the greatest attention to criticism of lawlessness. Condemning the boyar autocracy, he notes the complete disregard of the temporary boyars for the law and legal forms of state activity. Peresvetov's judicial reform, as well as financial and military reform, is primarily aimed at the destruction of the governorship. It is necessary to send direct judges to all cities, appointed directly by the supreme power, paid from the sovereign treasury. From the general judicial system I.S. Peresvetov highlights the military court, which in the army is carried out by the highest authorities who know their people. The trial is carried out on the spot, fast, just, formidable and duty-free, according to the same Code of Law for all. Among the types of crimes, Peresvetov mentions robbery, tatba (theft), deception in trade, and various judicial and government offenses.

I.S. Peresvetov in his ideas is close to the model of a class-representative monarchy, developing the principles of political theory outlined by Maxim Grek, Zinovy Otensky and Fyodor Karpov.

34. POLITICAL VIEWS OF IVAN THE TERRIBLE

The opposite trend in political ideology was most fully formulated by the king Ivan IV. Its content was to affirm the legitimacy of unlimited supreme power, which ensures the implementation of complete "autocracy" by its bearer. The political doctrine of Ivan IV took shape in an atmosphere of terror unleashed by him and set itself the task of justifying the most cruel methods of despotic rule. During this period of the development of Russian statehood, there were no real reasons and grounds for a return to specific fragmentation, because the completion of the unification policy had already become an obvious fact. The introduction of new forms of government in the form of oprichnina measures (1564) did not pursue reformist goals, and the division of the state into two parts (oprichnina and zemshchina) did not undermine the foundations of the power of the feudal aristocracy. Ivan IV abandoned the reforms and introduced a terrorist political regime in the country with the help of oprichnina measures. In the field of political views, Ivan IV paid the most attention to clarifying the legitimacy of the origin of the ruling dynasty. He considered the right of inheritance to be the only legitimate basis for occupying the royal throne. In the Epistle to the Swedish King, Ivan IV emphasizes the significance of his royal greatness precisely by the legitimacy of the origin of the power of the Russian princes and the hereditary receipt of the royal crown by Ivan himself. Such an understanding of royal power provided an ideological basis for determining the scope of its powers. Unlike Joseph Volotsky, Filofey, M. Greek, 3. Otensky and I. Peresvetov, who linked the actions of the tsar with "commandments and laws", Ivan does not recognize any restrictions on his power. The subject must be undividedly in the power of the king. Traditionally, for all Russian thinkers, the moral character of the ruling person mattered, but Ivan, on the contrary, is not at all interested in the morality of the royal person, he even boasts to some extent of his "badness", for him only the hereditary origin of power matters. Royal power is indivisible, and no interference with its prerogatives is inadmissible by its very nature. Ivan IV defines the form of power as "free tsarist autocracy... Nobody tells our sovereigns anything... no one replaces their free autocrats on the throne, installs or approves them. Only God can help a king. The king does not need "any instructions from the people, for it is not good, ruling over many people, to ask their advice." "Why, then, be called an autocracy?" The will of the scepter holder is not limited by any laws, since the “free royal autocracy” by its very nature does not allow control and restrictions. "Until now," wrote Ivan IV, "the Russian rulers did not report to anyone, but they were free to favor and execute their subjects, and did not sue them before anyone." The highest court in the state belongs only to him - as the direct governor of God. The type and measure of punishment is determined not by the law, but personally by the king himself, as well as establishes the degree of guilt of the punished. A very peculiar interpretation was received in the theory of Ivan IV by the position, traditional for Russian political thought, about the responsibility of the ruler to his subjects. The king cannot be criminal by his very nature, he can only be a sinner, and the punishment of sin is the prerogative of the Supreme Court.

Great importance in the judgments of Ivan the Terrible is given to the methods and ways of exercising power. The whole doctrine of Ivan IV is aimed only at the ideological justification of terror. The tsar was not interested in forms of government and not in the state system, but in giving legitimacy to oprichny robberies and violence.

35. POLITICAL VIEWS OF A.M. KURBSKY

The period of political activity and military service of the prince Andrei Mikhailovich Kurbsky (1528-1583) coincided with the intensification of state building in Russia. The estate-representative monarchy, which was formed in its main features in the middle of the 1550th century, provided for the need for a conciliar decision on all national affairs. In this historical situation, two trends emerged in the development of Russian statehood and the political theory that accompanied it, which corresponded to the ideals of various social groups of the ruling class. One of them, based on the reforms of the XNUMXs, assumed the development of estate representation in the center and in the regions. The other, carried out directly by Ivan IV himself, was to justify the right of unlimited power in the hands of the tsar by establishing a despotic political regime with a system of oprichnina innovations. Prince Andrei Mikhailovich Kurbsky, who took an active part in the activities of the government (the Chosen Rada), was a supporter of class representation in central and local authorities. Prince Andrei Mikhailovich Kurbsky came from an old family, he achieved his position at the royal court solely due to personal merits. With the fall of the government (Chosen Rada) he was disgraced as its active leader. Objectively assessing the significance of the royal disfavor, he decided to flee.

Kurbsky associates the decline in the affairs of the state and the accompanying military failures with the fall of the government and the introduction of the oprichnina. The dissolution of the Rada marked the complete and unconditional concentration of unlimited power in the hands of Ivan IV. In Kurbsky's legal understanding one can trace the idea of the identity of law and justice. Only what is fair can be called legal, since violence is the source of lawlessness, not law. Here Kurbsky’s reasoning largely goes back to the basic postulates of the political theory of Aristotle and especially Cicero. Outlining his requirements for lawmaking, Kurbsky emphasizes that the law must contain realistically feasible requirements, because lawlessness is not only failure to comply, but also the creation of cruel and unenforceable laws. Such lawmaking, according to Kurbsky, is criminal. His political and legal views outline elements of the natural law concept, with which the doctrines of state and law are associated already in modern times. Ideas about right and truth, goodness and justice are perceived as integral components of natural laws, through which the divine will preserves its highest creation on earth - man. Law enforcement practice is considered by Kurbsky, as well as Peresvetov, both in its judicial and extrajudicial versions. Kurbsky deeply disapproves of the current state of the court.

The best option for organizing a form of state power Kurbsky seems to be a monarchy with an elected class-representative body participating in the resolution of all the most important matters in the state. Kurbsky was not only for the creation of a representative body (the Council of All People), but also various "sigklits" consisting of advisers "reasonable and perfect in old age mastitis - in the Middle Ages, just as kind and brave, and those in military and zemstvo things experienced in everything", i.e. specialists of various profiles. The form of government in the form of a single centralized state system did not cause him any complaints and was fully approved by him.

Thus, Prince Andrei Kurbsky defended a form of power organized in the form of an estate-representative monarchy, in which all power and management powers could be exercised only on the basis of properly adopted laws.

36. POLITICAL DOCTRINE OF IVANATIMOFEEV

The turn of the XNUMXth-XNUMXth centuries, called the Time of Troubles, was a difficult and disturbing time for Russia. A feature of the political thought of this era is its milestone state. On the one hand, it accumulated all the wealth and political qualifications of the Middle Ages, and on the other, it already predicted the onset of a new era and other political orders. Significant in their content and political coloring, the events caused a great publicistic revival, expressed in the appearance of numerous legends, chronographs and stories that reflected the rise of national self-consciousness and patriotic feelings that arose in connection with the danger of depriving the country of independence.

The most vivid and complete expression of the political ideas of the late XVI - the first quarter of the XVII century. received during "Vremennike" by Ivan Timofeev (Semenov). Timofeev spoke out on almost all the pressing political problems of our time, formulating original opinions on the most significant political subjects, accompanying them with an analysis of the historical situation, with the help of which he tried to reveal the political content of contemporary events. Timofeev, apparently, came from a small noble or even bureaucratic environment and was associated with public service all his life. His career supposedly began in the middle of the 1598th century, and in 1607 he was already in public service and his signature appeared on the Electoral Certificate of Boris Godunov. Until XNUMX, he was in Moscow, and then was sent by the government of Vasily Shuisky to Novgorod, where he served continuously for ten years. The most legitimate option for the origin of power to Timofeev traditionally seems to be hereditary succession to the throne. However, the replacement of the throne not in a hereditary manner became a real fact. In such a situation, Timofeev considers the legitimate origin of the highest supreme power to be the will of the entire people, expressed in the form of a general, “from all cities assembled people’s council,” representing “the consent of the people of the whole earth,” which is the only one competent to install “the king of all great Russia.” All other persons who acquire the throne without going through this order should be considered “invaders” and not kings. This theoretical position allows the thinker to further classify rulers into legal and illegal. He classifies as legitimate, first of all, hereditary kings, as well as kings elected according to the established order; to the illegal - “invaders” and “self-crowned” who themselves “jumped onto the throne.” At the same time, he emphasizes everywhere that the “invaders” violated not only human, but also divine will, therefore the violent seizure of the royal crown never goes unpunished. So, the first “invader” - Boris Godunov, False Dmitry “got kicked like a goat and overthrew him from the throne,” then False Dmitry himself was killed and desecrated, and when suddenly “and by his own prompting and without the consent of the whole earth ... he installed himself as king “Vasily Shuisky, with this very action he already predicted a tragic end for himself, but at the same time he also greatly confused people, since the autocracy of kings gives birth, in turn, to the autocracy of their subjects, who plunged the country into severe turmoil, which almost brought its death. According to Timofeev, it was precisely because of the violation of the rules for replacing the throne that the country was illegally and maliciously ruled by persons who were completely unsuitable for the royal crown and sovereign scepter. The elected institution of the supreme power, according to Timofeev, is not just a one-time action, but a certain system of organizational measures that provides for the procedure for the formation and implementation of the highest powers in the country. Timofeev believes that the best form of state power is an estate-representative monarchy.

37. GENERAL CHARACTERISTICS OF POLITICAL AND LEGAL DOCTRINES IN THE HOLLAND IN THE XVII CENTURY

Holland is the first country in Europe where, in the course of a long national liberation struggle against the domination of feudal-monarchical Spain (second half of the XNUMXth - early XNUMXth centuries), the bourgeoisie came to power and a bourgeois republic was established. The political life of the young bourgeois republic, surrounded by European feudal monarchies (up to the victory of the bourgeois revolution in England in the second half of the XNUMXth century), proceeded under the sign of the struggle between supporters of the two main parties - the republican (bourgeois-patrician orientation) and the Orange (adherents of the rule of the House of Orange , whose representatives by inheritance held the position of stadtholder - head of state). In religious life, he occupied a dominant position Calvinism, who played a significant ideological role in uniting forces and liberating the country from the oppression of Spain, the stronghold of Catholicism at that time. After the victory, the official Calvinist church, which enjoyed influence not only among the nobility, but also among the broad masses of the people, in close alliance with the Orangemen, opposed the Republican Party, especially against its course towards freedom of thought and spiritual creativity, towards religious tolerance towards adherents of different faiths and numerous religious sects.

An outstanding contribution to the development of the early bourgeois political and legal ideology was made by the Dutch thinkers Hugo Grotius and Baruch Spinoza. The approach of Grotius and Spinoza to questions of politics, state and law, as well as for other early bourgeois ideologists, is characterized by appeals to the ideas of natural law and the contractual origin of the state and substantiation in the process of their rationalistic interpretation of essentially new bourgeois political and legal concepts. An essential aspect of their development of the theoretical foundations of the secular "legal worldview" was criticism from the positions of rationalism and humanism of medieval religious and scholastic dogmas, the struggle against theological ideas about nature, man, society, state and law. All this determines what was common to Grotius and Spinoza as progressive early bourgeois thinkers, with all the differences that exist between their views. The political and legal teachings of Grotius and Spinoza, each in their own way reflecting and defending the results of the bourgeois transformations in their native Holland, at the same time, without being limited to this, undoubtedly had a richer ideological and political content and cognitive value. They contained a theoretical substantiation of new rationalistic ideas, principles and concepts that corresponded to the needs of that transitional era and indicated the world-historical perspective of progressive development and improvement of social and political-legal forms of human life.

For Grotius, as one of the early representatives of the emerging bourgeois “legal worldview,” both the theoretical justification of the new legal understanding that would correspond to the socio-historical realities of the era of transition from feudalism to capitalism and the establishment of bourgeois society, and the systematic scientific development on the basis of such legal understanding were of significant interest basic principles, principles and forms of domestic life and international communication.

Baruch (Benedict) Spinoza (1632-1677) considered the only suitable, adequate way of rational knowledge of nature, where everything is done out of necessity, the deductive-axiomatic mathematical ("geometric") method.

38. THE DOCTRINE OF GROTIUS ON THE STATE AND LAW

Hugo Grotius (1583-1645) - an outstanding Dutch lawyer and political thinker, one of the founders of the early bourgeois doctrine of state and law, the rationalistic doctrine of natural and international law of the New Age. Grotius was an encyclopedically educated and prolific author who created more than 90 works on the history and theory of state and law. His main work is the fundamental work “On the Law of War and Peace.” For Grotius, as one of the early representatives of the emerging bourgeois “legal worldview,” both the theoretical justification of the new legal understanding that would correspond to the socio-historical realities of the era of transition from feudalism to capitalism and the establishment of bourgeois society, and the systematic scientific development on the basis of such legal understanding were of significant interest basic principles, principles and forms of domestic life and international communication. According to Grotius, the subject of jurisprudence is questions of law and justice, and the subject of political science is expediency and benefit. In order to give jurisprudence a “scientific form,” according to Grotius, it is necessary to carefully separate “that which has arisen by institution from that which follows from nature itself,” for only that which follows from the nature of a thing can be brought into scientific form and always remains identical to itself (i.e. natural law). Therefore, Grotius noted, in jurisprudence one should distinguish between “the natural, unchangeable part” and “that which has its source in the will.” In accordance with this understanding of the subject of jurisprudence, Grotius attached significant importance to the division of law into natural and volitional, proposed by Aristotle. Natural law is defined by him as “a prescription of common reason.”

According to this prescription, this or that action - depending on its compliance or contradiction with the rational nature of man - is recognized as either morally shameful or morally necessary. Natural law, thus, acts as the basis and criterion for distinguishing what is due (permissible) and what is not due (illegal) by its very nature, and not by virtue of any volitional (by people or God) prescription (permission or prohibition). Based on his concept of natural law, Grotius sought to create such a normatively significant, axiomatic system of jurisprudence, the general principles and provisions of which could be easily applied to specific real situations within individual states and to relations between states. Objecting to the ideas that justice is only the benefit of the strong, that law is created by force, that it was fear that prompted people to invent law in order to avoid violence, etc., Grotius, in his contractual concept, sought to show that the origin of the state and domestic law (laws) is a logically inevitable consequence of the existence of natural law. The political and legal teaching of Grotius, both in domestic and international relations, is aimed at establishing legal principles and achieving peace. Justifying the need for legal formalization and regulation of international relations, and above all the problems of war and peace, Grotius criticized the widespread opinion that war is completely incompatible with law. Grotius’ teaching on the law of war and peace was focused on the formation of a new type of world community, based on the rational and legal principles of equality, cooperation and reciprocity in relations between all people, nations and states, on the idea of a single international legal order voluntarily established and consistently observed by sovereign states.

39. POLITICAL AND LEGAL DOCTRINE OF SPINOSA

A new rationalistic approach to the problems of society, state and law was further developed in the work of the great Dutch philosopher and political thinker Baruch (Benedict) Spinoza (1632-1677). His political and legal views are set out in the "Theological-Political Treatise", "Ethics Proved by the Geometric Method" and the "Political Treatise". The only suitable, adequate way of rational knowledge of nature, where everything happens out of necessity, is, according to Spinoza, the deductive-axiomatic mathematical (“geometric”) method. True, when considering problems of state and law, he sought to take into account to a certain extent the specifics of this subject area of cognition. He characterized the laws of nature as “the decisions of God revealed by natural light,” that is, revealed by human reason, and not given in divine revelation. At the same time, the laws and rules of nature, according to which everything happens from eternity, are the “strength and power of action” of nature itself. Spinoza’s interpretation of natural law is also based on this understanding of the laws of nature, since man is a piece of nature and all natural laws and necessities apply to him, like the rest of nature. Natural law prohibits only what no one wills and what no one can do. By nature and by natural law, people are enemies. Referring to experience, Spinoza noted that all people (both barbarians and civilized) are everywhere in communication and live in a certain civil state. From here, he concludes, “it is clear that the causes and natural foundations of the state should not be sought in the instructions of reason (ratio), but deduced from the general nature or structure of people.” A distinctive feature of the civil state is the presence of supreme power (imperium), the total body of which, according to Spinoza, is the state (civitas). By supreme power, this essentially means the sovereignty of the state. An important feature of Spinoza’s contractual theory of the state is that “the natural right of everyone in the civil state does not cease,” since in both the natural and civil states a person acts according to the laws of his nature, in accordance with his own benefit, motivated by fear or hope. Spinoza also has judgments that the ultimate goal of the state is to free everyone from fear, ensure his safety and the opportunity to best maintain his natural right to existence and activity without harm to himself and others. Much attention in Spinoza's political and legal teachings is paid to the problem of the forms of the state, which he illuminates from the point of view of the best state of various forms of supreme power, that is, the degree to which they ensure the goal of the civil state - peace and security of life. Depending on the degree to which this goal is realized, different states have “absolute state rights” to varying degrees.

Spinoza singles out and illuminates three forms of the state (supreme power) - monarchy, aristocracy and democracy. The tyranny he criticizes does not appear among the forms of the state. He also rejects any other supreme power established by conquering and enslaving the people. With his obvious sympathies for the democratic state, Spinoza, taking into account the political realities of his era, recognizes the acceptability and some advantages of such forms (if they are properly structured) as monarchy and aristocracy. Spinoza gives his preference to the federal form of an aristocratic republic, in which the supreme power is concentrated in many cities and, therefore, in this case is divided among the cities - members of the federation.

Spinoza entered the history of political and legal thought as a progressive humanist thinker, critic of theological political and legal ideas, one of the creators of the secular doctrine of state and law.

40. MAIN DIRECTIONS OF ENGLISH POLITICAL AND LEGAL THOUGHT IN THE XNUMXTH CENTURY

English bourgeois revolution of the XNUMXth century. dealt a crushing blow to feudalism and opened up scope for the rapid growth of capitalist relations in one of the leading countries of Western Europe. Each of the social groups that took part in the revolution put forward their political programs and substantiated them with appropriate theoretical calculations. These programs and the theoretical constructions on which they relied differed from each other in content and social class orientation. What they had in common was religion.

The English bourgeoisie borrowed its ideology from the Calvinist Reformation. The opponents of the revolution, who combined faith in the inviolability of the feudal order with devotion to royal absolutism and clerical convictions, did not particularly care about the novelty and weight of the argument that they used in the ideological struggle. They were armed the concept of the divine nature of monarchical power, the theory of patriarchal emergence and the essence of the state. The first was developed by Claudius Salmasius, a professor at the University of Leiden (Holland), in the pamphlet “Royal Defense”. The theory of the patriarchal origin of the state was expounded by Robert Filmer in his essay “Patriarchy, or the Natural Power of the King.” One of the most widespread and influential ideas at that time was independents. The main religious and political slogans of the Independents were as follows: complete independence and control for each community of believers, the elimination of the centralized state and subordinate to the dictates of the king of the Anglican Church, absolute religious tolerance and the inalienability of freedom of conscience, etc. The actual political demands of the Independents were distinguished by moderation. Recognizing the advantages of the republican system, they were ready to be content with the establishment of a constitutional monarchy. The exponents of the Independent ideology were John Milton, Algernon Sidney, James Garrington and others. The great English poet John Milton (1610-1674) took an active part in the revolution on the side of democratic forces. His treatises “On the Power of Kings and Officials”, “Defense of the English People against Salmasius”, “Iconoclast” substantiate the position that people are by nature free and must remain so under all conditions of social life without exception. The people are the only source and bearer of power and state sovereignty. The Levellers' intentions went much further than those of the Independents. The ideas they put forward played a very important positive role in the socio-political life of Western Europe and North America in the 1614th-1657th centuries, and in the development of progressive political and legal thought. The leader and ideologist of the Leveller party was John Lilburne (XNUMX-XNUMX). He wrote and, with his participation, compiled numerous pamphlets and documents that set out the political program of the most democratically minded circles of English society active in the revolution. The cornerstone of the Levellers' platform is the principle of primacy, supremacy and sovereignty of the power of the people. The Levellers did not simply proclaim this principle. They also enriched it with the provision of the inalienability of popular sovereignty. The laws of history itself, responsibility to descendants and ancestors, prohibit a nation from alienating its power to anyone. Among all the other political movements that took part in the English bourgeois revolution, the Levellers stood out for their uncompromising rejection of any form of monarchical and oligarchic rule. Their ideal is a republic in which elections to a unicameral parliament are held regularly and democratically.

41. POLITICAL AND LEGAL DOCTRINE OF HOBBES

The attitude towards the revolution of one of the most prominent English thinkers was peculiar. Thomas Hobbes (1588-1679). The basis of his theory of state and law T. Hobbes puts a certain idea of the nature of the individual. He believes that initially all people are created equal in terms of physical and mental abilities, and each of them has the same "right to everything" with the others. However, man is also a deeply selfish being, overwhelmed by greed, fear and ambition. Surround him only envious, rivals, enemies. Hence the fatal inevitability in society of a "war of all against all." To have a "right to everything" in the conditions of such a war means, in fact, to have no right to anything. Hobbes' picture of the "state of nature" can be regarded as one of the first descriptions of the emerging English bourgeois society with its division of labor, competition, the opening of new markets, the struggle for existence. The absolute power of the state - that, according to T. Hobbes, the guarantor of peace and the implementation of natural laws. It compels the individual to fulfill them by issuing civil laws. If natural laws are associated with reason, then civil laws are based on force. However, their content is the same. Any arbitrary inventions of legislators cannot be civil laws, for the latter are the same natural laws, but only backed up by the authority and power of the state. The state is established by people in order to put an end to the "war of all against all" with its help, to get rid of the fear of insecurity and the constant threat of violent death - companions of the "unbridled state of anarchy." By mutual agreement among themselves (everyone agrees with everyone), individuals entrust to a single person the supreme power over them. The state is that person, using the strength and means of all people in such a way as it considers necessary for their peace and common defense. The bearer of such a person is the sovereign. The sovereign has supreme power, and everyone else is his subject. This is how T. Hobbes the emergence of the state. As a theorist of political absolutism, who advocated the limited power of the state as such, T. Hobbes paid great attention to the problem of state forms. According to T. Hobbes, there can be only three forms of the state: monarchy, democracy (people's rule) and aristocracy. They differ from each other not in the nature and content of the supreme power embodied in them, but in differences in suitability for the implementation of the purpose for which they were established. And yet the deep sympathies of T. Hobbes is on the side of the monarchy. He is convinced that it expresses and realizes the absolute nature of the power of the state better than other forms; in it the general interests coincide very closely with the private interests of the sovereign. Wholly subordinating the individual to the absolute power of the state, T. Hobbes nevertheless leaves him the opportunity to oppose the will of the sovereign. This opportunity is the right to revolt. It opens only when the sovereign, contrary to natural laws, obliges the individual to kill or maim himself, or forbids him to defend himself against the attack of enemies. The protection of one's own life is based on the highest law of all nature - the law of self-preservation. The sovereign has no right to transgress this law.

Following N. Machiavelli and G. Grotius, T. Hobbes began to consider the state not through the prism of theology, but to derive its laws from reason and experience. But this does not mean at all that he chose the words "There is no God" as the epigraph to his political and legal doctrine. He fought not with words that expressed religious prejudices and superstitions, but first of all with these superstitions and superstitions in their essence, the scientific talent and mature political tact of T. Hobbes were clearly manifested.

42. LOCKE'S STATE AND LAW

John Locke (1632-1704) acted as an ideologue of social compromise in England. His political and legal doctrine, he outlined in the work "Two treatises on government" (1690).

J. Locke took the position of those social groups that finally achieved guaranteed participation in the leadership of society, which prompted him to dissociate himself primarily from the radical views of the era of the revolution. J. Locke fully shared the ideas of natural law, the social contract, popular sovereignty, inalienable freedoms of the individual, the balance of power, the legality of the uprising against the tyrant, etc. The state is, according to J. Locke, a set of people united into one whole under the auspices of them same established general law and created a judicial authority competent to settle conflicts between them and punish criminals. The state differs from all other forms in that it alone embodies political power, that is, the right, in the name of the public good, to make laws to regulate and preserve property, as well as the right to use the force of the community to enforce these laws and protect the state from outside attack. The state is the social institution that embodies and sends the function of public authority. Building the state voluntarily, listening here only to the voice of reason, people extremely accurately measure the amount of authority that they then transfer to the state. In essence, the normal "structure of government" was drawn to the imagination of J. Locke as a complex of official, normatively fixed checks and balances. These ideas about differentiation, the principles of distribution, communication and interaction of individual parts of a single state power formed the basis of the emerging in the XNUMXth century. doctrine bourgeois constitutionalism. The immediate social-class meaning of J. Locke's ideas about the separation of powers is clear. They ideologically justified the compromise between the victorious English bourgeoisie and the feudal aristocracy, which had lost its monopoly of power, which emerged as a result of the revolution of 1688. The question of state form, traditional for European political thought since the time of Aristotle, also interested J. Locke. True, he did not give any special preference to any of the already known or possible forms of government; they only categorically rejected the absolutist-monarchical structure of power. His personal sympathies leaned more towards that limited, constitutional monarchy, the real prototype of which was the English statehood, as it became after 1688. For J. Locke, the most important thing was that any form of state grows out of a social contract and the voluntary consent of people, so that it has proper “structure of government”, protected the natural rights and freedoms of the individual, and cared for the common good of all.

J. Locke perfectly understood that there are no such ideal state forms that would be once and for all insured against the danger of degenerating into tyranny - a political system where "the exercise of power apart from law" takes place. When the authorities (legislative, executive - it doesn't matter) begin to act, ignoring the law and common consent, bypassing the laws duly adopted in the state, then not only the normal government of the country is disorganized and property becomes defenseless, but the people themselves are enslaved and destroyed. The references of the usurpers to the desire in this way to ensure order, tranquility and peace in the state, J. Locke countered by pointing out that the tranquility desired by tyrants is not peace at all, but a terrible state of violence and robbery, beneficial only to robbers and oppressors.

43. POLITICAL AND LEGAL IDEAS OF EUROPEAN ENLIGHTENMENT

The honor of one of the main inspirers and recognized leaders of the European Enlightenment rightly belongs to Voltaire (1694-1778) - the great French thinker and writer. He did not leave behind special political and legal works, similar to those created before him, for example, G. Grotius, T. Hobbes, J. Locke or his contemporaries S. Montesquieu and J.-J. Rousseau. Views on politics, the state, law and law are interspersed in the most diverse works of the writer, side by side in them with arguments on other topics. A sharply critical attitude, ridicule and denial of the social, legal and ideological foundations of the then feudal society clearly distinguishes these Voltaire views. Another expressive difference is the spirit of freedom, humanism, and tolerance that pervades them. Voltaire saw the root of the existing social evils, which can and should be destroyed, primarily in the dominance of ignorance, prejudice, superstition, in the suppression of reason. He considered the church, Catholicism, to be the main stronghold and the culprit of all this. Voltaire did not care at all about the problems of reorganizing society on a democratic basis. Moreover, he was mortally afraid of the democracy of democracy. But other problems were extremely close to him: natural law, freedom, equality. Appeal to the concept of natural law, natural law is a way to legitimize, give the highest authority to the most significant political and legal values for Voltaire: freedom and equality, embodying both reason and interest given by nature. Freedom for him in the first place - the freedom of the individual, the individual, private freedom, and not the freedom of society as a whole. The core of personal freedom is the freedom of speech, and with it the freedom of the press. In particular, he singles out freedom of conscience as the antipode of depressing Catholic intolerance. Genuine freedom, according to Voltaire, is manifested in the fact that people cease to be formally dependent on each other; they become autonomous entities. In the history of political and legal ideas, freedom and equality have often been opposed to each other. Voltaire avoids such opposition. On the contrary, he considered enviable the position in which freedom is supplemented and reinforced by equality. Voltaire used these ideas about freedom and equality in his proposals for reforming feudal society, which invariably provoked his protest. In different situations and in different periods, the state that meets the needs of the era, according to Voltaire, can act in various organizational forms. Ceteris paribus, he gives preference to the absolute monarchy that has developed in his country. Least of all, he likes revolutionary upheavals, the breaking of an already existing statehood. But Voltaire wants absolutism to become "enlightened". However, Voltaire knows and appreciates the virtues of other state forms. Thus, he notes that initially the state arises in the form of a republic, formed from the union of families. Its emergence is the result of the natural course of development. The Republic, according to Voltaire, generally brings people closer to their natural state. Power in it is directed by the will of all. This power is exercised by one person or a group of persons on the basis of laws passed by all. Along with this, Voltaire honors the form of government that was established in England as a result of the revolution that took place in the country, i.e.

Voltaire belongs to those thinkers who attach paramount importance not to the forms of government of the state, specific institutions and procedures of power, but to the principles implemented with the help of these institutions and procedures. For him, such socio-political and legal principles were freedom, property, legality, humanity.

44. POLITICAL AND LEGAL DOCTRINE OF MONTESKIER

Charles Louis Montesquieu (1689-1755) - one of the brightest representatives of the French Enlightenment, an outstanding lawyer and political thinker. Along with jurisprudence and politics, the problems of philosophy, ethics, history, sociology, religion, political economy, natural sciences, art and literature were in the field of his attention and creativity. His three main works are Persian Letters (1721), Reflections on the Causes of the Greatness and Fall of the Romans (1734) and On the Spirit of the Laws (1748). The main theme of the entire political and legal theory of Montesquieu and the main value defended in it is political freedom. Just laws and the proper organization of statehood are among the necessary conditions for ensuring this freedom. In relation to man, the laws of nature (natural laws) are interpreted by Montesquieu as laws that "follow solely from the structure of our being." To the natural laws, according to which a person lived in a natural (pre-social) state, he refers the following properties of human nature: the desire for peace, for obtaining food for himself, for relations with people on the basis of mutual request, the desire to live in society.

Montesquieu specifically noted the wrongness of Hobbes, who attributed to people the initial aggressiveness and desire to rule over each other. On the contrary, a person, according to Montesquieu, is initially weak, extremely fearful and strives for equality and peace with others. Moreover, the idea of power and domination is so complex and dependent on so many other ideas that it cannot be the first idea of man in time. But as soon as people unite in society, they lose the knowledge of their weakness. The equality that existed between them disappears, wars of two kinds begin - between individuals and between peoples. Montesquieu, in relation to democracy, notes that here the people are sovereign only by virtue of the votes by which they express their will. Therefore, he considers the laws that determine the right to vote to be fundamental for democracy. The people, he argues, are able to control the activities of others, but are not able to conduct business themselves. Accordingly, laws in a democracy must provide for the right of the people to elect their representatives and control their activities. One of the basic laws of democracy is the law, by virtue of which the legislative power belongs only to the people. But, in addition to permanent laws, Montesquieu emphasizes, the decisions of the Senate are also necessary, which they relate to acts of temporary action. He notes that such acts are also useful in the sense that it becomes possible to check their operation within a certain period of time before finally establishing them. In a monarchy, where the sovereign himself is the source of all political and civil power, Montesquieu refers to the main laws that determine the "existence of intermediate channels through which power moves," that is, the presence of "intermediate, subordinate and dependent" authorities, their powers. Chief among these is the power of the nobility, so that without the nobility the monarch becomes a despot. The nature of each type of government corresponds to its own principle, setting in motion the mechanism of human passions, special for a given political system. In a republic (and especially in a democracy), virtue is such a principle; in a monarchy, honor; in a despotism, fear.

The separation and mutual containment of powers are, according to Montesquieu, the main condition for ensuring political freedom in its relationship to the state system. At the same time, Montesquieu emphasizes that political freedom does not consist in doing what one wants.

45. RUSSO'S POLITICAL AND LEGAL DOCTRINE

Jean-Jacques Rousseau (1712-1778) - one of the brightest and original thinkers in the entire history of social and political doctrines. His social and political and legal views are set forth in such works as: "Discourse on the question: did the revival of sciences and arts contribute to the purification of morals" (1750), "Discourse on the origin and foundations of inequality between people" (1754), "On political economy "(1755), "Judgment about the eternal world", "On the social contract, or the principles of political law" (1762). The problems of society, state and law are covered in the teachings of Rousseau from the standpoint of substantiating and protecting the principle and ideas of popular sovereignty. Rousseau uses the ideas about the state of nature that were widespread at that time as a hypothesis to present his, in many respects new, views on the entire process of formation and development of the spiritual, social, political and legal life of mankind. In the state of nature, according to Rousseau, there is no private property, everyone is free and equal. Inequality here is at first only physical, due to the natural differences of people. However, with the advent of private property and social inequality, contrary to natural equality, a struggle begins between the poor and the rich. The way out of such conditions, inspired by the "cunning" arguments of the rich and at the same time conditioned by the vital interests of all, consisted in an agreement on the creation of state power and laws to which everyone would obey. However, having lost their natural freedom, the poor did not gain political freedom. The concept of the social contract substantiated by Rousseau expresses, on the whole, his ideal ideas about the state and law. Rousseau's main thought is that only the establishment of the state, political relations and laws, consistent with his concept of the social contract, can justify - in terms of reason, justice and law - the transition from the state of nature to the civil state. Rousseau's ideal ideas are in obvious contradiction with his own guesses about the role of private property and inequality in social relations and the resulting objective need for a transition to the state. In Rousseau's interpretation, the contemporary feudal system, critically correlated with the bourgeois-democratic principles of the social contract, is deprived of its legitimacy, fair and legal character - in a word, the right to exist: it rests not on law, but on force. But force does not create law - neither in the natural nor in the civil state. The moral cannot be the result of physical power at all. The basis of any legitimate power can only be agreements. Rousseau distinguishes four kinds of laws: political, civil, criminal, and laws of the fourth kind, "the most important of all" - "mores, customs, and especially public opinion." He emphasizes that only political laws pertain to his theme of the social contract. In the spirit of Montesquieu and other authors, Rousseau speaks of the need to take into account in the laws the uniqueness of the geographical factors of the country, the occupations and customs of the people, etc. Laws are necessary conditions for civil association and community life.

With his doctrine of the law as an expression of the general will and of the legislative power as the prerogative of inalienable popular sovereignty, with his concept of the social contract and the principles of the organization of the state, Rousseau had a huge impact on the subsequent development of state-legal thought and socio-political practice. His doctrine became one of the main ideological sources in the process of preparing and carrying out the French bourgeois revolution, especially at its Jacobin stage.

46. POLITICAL AND LEGAL DOCTRINES OF THE JACOBINS

The Jacobin political and legal ideology is an organic part, an integral component of the public consciousness of that turbulent revolutionary era that France experienced at the end of the XNUMXth century. At this time, political and legal ideas arise and function. J.-P. Marat and M. Robespierre.

Jean-Paul Marat (1743-1793) outlined his political views in the pamphlet "Chains of Slavery" and "Plan of Criminal Legislation" (1780). The central theme of these works is despotism: its origins, methods and means of establishing despotic power, its consequences, ways and forms of struggle against it, etc. nature of the desire to dominate. According to Marat, in order to arrive at a "well-organized state", it will be necessary to divide public power among a large number of officials. Placed all as one in dependence on the people, they must be independent of each other, must mutually balance, moderate and restrain each other. In a "well-ordered state," the highest power, according to Marat, belongs to the people as a whole. Marat distinguishes between natural and civil rights of individuals. The first are original, the second are derived from them. Marat weakly believes in the possibility of putting an end to despotic regimes by reforming the established state and legal orders. His ultimate hope is an uprising of the masses, a spontaneous popular revolt, reprisal against the masters, those in power, enemies of the fatherland, etc.

The symbiosis of liberal democratic and authoritarian ideas, similar to Maratov’s, is inherent in a number of political doctrines of the era of the Great French Revolution. Perhaps the dominant one among them is the system of state and legal views of M. Robespierre. Robespierre's social ideal is not original: a society of small producers, where everyone owns land, a small workshop, a shop that can feed his family, and where a person directly exchanges the products they produce with other people equal to him. Therefore, Robespierre’s cherished goal is an exemplary petty-bourgeois system. He has no intention of going beyond the world of private property. Robespierre's concept of an ideal republic is not the product of direct experience, it is the fruit of an intellectual doctrine stemming mainly from the writings of Rousseau and Montesquieu. The semantic core of the totality of Robespierre's political and legal views are provisions on state power, on the apparatus of the state, on the principles of its construction and functioning. According to Robespierre, three principles should lie at the foundation of a political union. The first of them is the protection and provision of the natural rights of a citizen, the development of all his abilities. The second is the right of every citizen to participate in legislation and government, due to the natural equality and innate freedom of people. The third is the supremacy of the power of the people in the state. The people in any situation have the right to decide their own fate. Theses about the sovereignty of the people and that a society cannot be free if it is not liberated from oppression and arbitrariness of literally every member of it, have become a valuable acquisition of progressive political thought. The motives that prompted Robespierre to defend the thesis about the obligatory resort to measures of violence, the use of terror in the fight against the old order for the sake of establishing a republican-democratic system, were “prompted” to him by certain worldview and ideological ideas. Among them is the persistent conviction that war is necessary not only to destroy counter-revolutionaries (open and secret), but also to eradicate the weaknesses of human nature, vices, prejudices, for they also pave the way for royal power.

47. POLITICAL AND LEGAL IDEOLOGY OF FRENCH SOCIALISM

1755th century in Europe, it far surpassed the two centuries preceding it in terms of the number and level of socialist literature of various kinds that appeared in this century. Of the works that are actually theoretical in nature, the Code of Nature, or the True Spirit of its Laws (XNUMX), published in France, which Morelli is considered to be the author of, and the works Gabriel Bonnot de Mably (1709-1785): "On the Rights and Duties of a Citizen", "On Legislation, or the Principles of Laws", etc. Both writers stood on the positions of denying private property and everything connected with it and considered the ideal system based on the community of property.

Morelli's main work, The Code of Nature, is a major milestone in the history of socialist doctrines. Among many other statutes, it also lays down "Laws on the form of government, which should prevent all tyranny" and "Laws on government." In Morelli's discourse on the political institutions and norms designed to safeguard the nation from a relapse into tyranny, it is not difficult to detect a silence about the electoral system. This silence is not accidental. It seems to the thinker that electivity violates the principle of equality, since in a society of equals everyone is equally worthy of being elected. Morelli described the communist structure of society in terms of his time. It is not his fault that the result is a colorful image of barracks communism. Actual history has confirmed the authenticity of just this image. It could not present communism in any other guise to human civilization.

Unlike Morelli, G. Mably refrained from scrupulous description of the organization of all spheres of life in the communist society of the future. The impossibility of depicting a perfect communist society in all its dimensions does not discourage H. Mably. He paints a general picture of a utopian republic of equality, partially cured of the evils generated by the inequality of property. Mably proceeds primarily from the fact that a fundamentally new social system is necessary to ensure the happiness of the people, of mankind. He relies predominantly on peaceful political action and on laws as the means by which such happiness can be ensured. According to G. Mably, the people are the only creator of the political system, the original bearer of the supreme power and its distributor, trusting it completely or in shares to its officials. Without a doubt, G. Mably considers a democratic republic the most suitable political shell for a society that has managed to "finish itself" to the communist system.

The programmatic and political orientation of G. Babeuf - a fierce opponent of private property and everything connected with it - consists in the demand to "build a people's state" in place of the previously existing anti-people statehood. He is sure that "people's government should and can ensure the prosperity and happiness of every person, the indestructible prosperity of all members of society." The path to such a government lies through a transitional period. It begins with an uprising of the masses, prepared by a conspiratorial organization of revolutionaries. G. Babeuf and his supporters built their attractive plans for achieving "the indestructible prosperity of all" and "the happiness of every person" with a direct calculation of decisive and tough leadership from above, from the center (mainly by volitional, command methods) of all aspects of the life of the republic (economic, political, legal, cultural, everyday life, etc.) with the strictest obedience of citizens to the laws, instructions of the supreme administration, with the obligatory participation of everyone in its activities.

48. NATURAL LEGAL DOCTRINES IN GERMANY IN THE XVII-XVIII CENTURIES

The devastating Thirty Years' War (1618-1648) had a detrimental effect on the socio-economic condition of Germany. Fragmented into hundreds of independent principalities, tormented by spiritual and secular despots, it noticeably lagged behind Holland, England and France in its development. But gradually opposition to the existing regime arises and ideologists appear, whose works reflect the interests and needs of the new social forces. At the end of the XVII century. The German Enlightenment is born. Along with the moderate wing (S. Pufendorf, H. Thomasius, H. Wolf), it also had a more radical left wing (M. Knutzen, T. Lau, G. Lessing).

To build legal science on a secular basis in Germany was the first to start Samuel Pufendorf (1632-1694). The starting point of Pufendorf's constructions is the concept of a natural, pre-state society. In a natural community there is no “war of all against all” (as T. Hobbes believed). People's needs are satisfied, there is no constraint on natural equality and freedom, and here individuals are not dominated by coercive force. An increase in population, growing uncertainty in ensuring rights, and finally, fear of possible evil led to the fact that humanity had to say goodbye to the original form of community life. An impetus was given to the creation of the state, the only reliable institution for the security of people.

The struggle for the liberation of jurisprudence from theology led Christian Thomasius (1655-1728). Thomasius was a deeply religious man and believed that God ultimately controls everything in the world. At the same time, he believed that the quintessence of God-given natural law is the maxim: act in accordance with the humane requirements of human society - refrain from bad actions that contradict them - and this will be a prerequisite for the realization of the inherent desire for happiness in man. According to Thomasius, this maxim was rooted in human nature itself, which gave natural law the character of a set of moral commandments. In essence, God was not needed to create the state. It arose from an agreement as a result of the fact that various obstacles appeared on the path of people who did not know private property and longed for a blissful life. The state was called upon to eliminate them. In the distant future of centuries, Thomasius foresaw a true human community in which complete happiness would reign without any hindrance. The abolition of private property would, as it seemed to Thomasius, open the doors to this ideal system.

Under the influence of the ideas of S. Pufendorf and H. Thomasius, the state-legal views of the outstanding encyclopedist of the German Enlightenment, Christian Wolff (1679-1754), took shape. The leitmotif of Wolffian social teaching is the thesis about a person’s desire for happiness. God breathed into human souls a desire for improvement. It forces you to do good, avoid evil and prefer the best to the worst. Complying with these duties is a natural law of human behavior. Wolf paints the origin and essence of the state in approximately the same spirit and in approximately the same colors as Pufendorf and Thomasius. The state is the fruit of an agreement between families (in Wolf's terminology, “houses”), concluded by them due to the fact that each family individually could not provide itself with all the necessary amenities for life. The supreme power is formed by the addition of the wills of the counterparties entering into an agreement. The purpose of the state is to promote the achievement of the “common good” of the people.

49. POLITICAL AND LEGAL DOCTRINES IN ITALY IN THE XNUMXTH CENTURY

At the turn of the XNUMXth century, almost two centuries of social stagnation in Italy, caused by the transformation of the country into a de facto province of the Spanish crown and the intensified imposition of serf-absolutist orders, gave way to an intensification of economic activity and social life. Using the dissatisfaction of the people with feudal institutions, the ideologists of the emerging bourgeoisie demand the creation of conditions for the development of capitalist production. However, the weakly consolidated, fragile Italian bourgeoisie is afraid of a complete and abrupt break with the past and often compromises with feudal-clerical circles. This dual political position is shared by Italian enlighteners, including the most significant of them - G. Vico and C. Beccaria.

Giambattista Vico (1668-1744) - one of the first thinkers who in a number of points anticipated scientific sociology. He understood history as an objective natural process that proceeds cyclically. History for Vico is an endless string of human actions, but divine providence directs these actions. In his main work, The Foundations of a New Science of the General Nature of Nations (1725) he applied the historical-comparative method and the deterministic approach also to the explanation of state-legal institutions. The cycle passed by history includes three phases. Its initial stage is divine, the era of the gods. She does not know statehood, does not know legal norms. The laws here are the mysteries and divinations of the oracles, which informed people the will of the gods. In the second phase of the historical cycle, in the era of heroes, the state exists as the power of the aristocracy, which dictates legal norms saturated with self-interest and mercilessly suppresses the plebeians. The right here is the right of brute force. The third and last phase is the era of people. It is characterized by republican-democratic structures or representative monarchies with rights and freedoms worthy of a person that ensure popular sovereignty. The laws here wisely and flexibly combine private interests with universal ones, establish equality between people. The Neapolitan philosopher clearly idealized the coming bourgeois society. However, at that moment this idealization had a historically progressive character.

Vico's ideas did not receive distribution and recognition for a long time, which cannot be said about the views of his compatriot, the founder of the so-called classical school in the science of criminal law Cesare Beccaria (1738-1794) and his famous work On Crimes and Punishments. A supporter of the natural law doctrine, Beccaria believes that once constant wars and arbitrariness completely tired individuals and they, sacrificing some of their freedom, united in order to enjoy the rest of it calmly and safely. The sum of the particles donated for the common good of freedom formed the supreme power of the nation, which was supposed to provide people with a normal existence under the shadow of just laws. But there is no peace and truth, there is violence and lack of rights all around, since "most of the laws are nothing but a privilege, that is, a tax imposed on everyone for the benefit of a few." He speaks of "the beneficent monarchs sitting on the thrones of Europe, patronizing the peaceful virtues, sciences and arts, the fathers of their peoples." He speaks of the elimination of poverty and the gradual equalization of all citizens, both in moral and material benefits; speaks for general education and good education; writes about simple, wise laws and the equality of all people before them, about the need for strict legality and exact observance of mandatory guarantees of individual rights.

50. PHILOSOPHY OF ENLIGHTENED ABSOLUTISM OF SIMEON OF POLOTSK

With the justification of the legitimacy of an enlightened absolute monarchy, Samuil Petrovsky-Sitnianovich (Polotsk) (1629-1680). Simeon acted in his works as a conductor of Western culture and education. He dealt with social issues only indirectly, and here his views are quite orthodox. The thinker defended social inequality, seeing in its presence a projection of heavenly orders on earth. All people are obliged to fulfill their duty, predetermined by fate, which is the main purpose of man on earth, where everyone has his own place. However, he urged the wealthy "bosses" to take care of their "subordinates" and not bring them to poverty, and also to manage them with reason and meekness, and not through the "imposing of ulcers." Among the vices of Russian life, Simeon criticizes laziness, idleness, and especially drunkenness. The theme of the obligation of labor is constantly present in all the works of the thinker. The main problem of Simeon's work was the resolution of issues related to the supreme power, the form of its organization and activity. He was one of the first in the history of domestic political and legal thought to give a theoretical justification for the need to establish an enlightened monarchy. Simeon actively raised the authority of the royal person, comparing the king with the sun. The formula "king-sun", which is a characteristic attribute of an absolute monarchy, was introduced into Russian political literature for the first time. Simeon pays great attention to the description of the image of the king. First of all, he must be an educated person, striving to acquire knowledge from books and conversations with "wise people", and it is especially useful for a king to read books on history and assimilate the historical experience of other countries and peoples and "rule his life by their example." The king needs not only to educate himself, but also to educate his people. Simeon insists on a distinction between a king and a tyrant. “Who is the king and who is the tyrant, if you want to know, try to read Aristotle’s books. He believes this difference. The king wishes profits for his subjects. The tyrant wants more than shelter. About citizens, not a little sadness is needed. The poet-thinker believes that an enlightened monarchy should be a state whose activities are based only on laws. "Under the law, all executions must suffer," and there are no exceptions to this rule for anyone, neither for the king himself, nor for his son. All people in citizenship are obliged to be afraid of the law, obedience to which strengthens the state and "declares and honors the kingdom." The term "truth" Simeon traditionally uses in the meaning of "law". He asks the king to "keep the truth" and establish it throughout the kingdom and execute judgment "in the image of the truth." The thinker also drew attention to the inadmissibility of cruel sanctions. The court is obliged to restore the truth, and not to take revenge, for revenge is inhuman and, moreover, is contraindicated to truth, since it comes "from the fierce truth of hatred." Simeon dreams of an equal judgment for all, which will be "equally judged by small and great", regardless of the person. The organization of judicial institutions, in his opinion, should be uniform, able to carry out a single court for all. The thinker welcomes the accession of Belarus to Russia and repeatedly expresses hope for the liberation of all Slavic peoples from the yoke of the heterodox "proud Hagarians", believing that the Russian tsar should help all Orthodox peoples to free themselves "from the common enemy of the Christian serpent kind... Hagarian", for it is necessary, finally, to crush the "host of Hagar, seeking strife, not wanting peace." In determining the foreign policy of the Russian state, Simeon adhered to the orientation, traditional for Russian political thought, towards the peaceful resolution of all foreign political conflicts.

51. POLITICAL VIEWS OF V.N. TATISCHEVA

Vasily Nikitich Tatishchev (1686-1750) came from a noble noble family. He graduated from the Moscow artillery school, devoting a lot of time to self-education, as a result of which he gained fame as one of the most educated officers of the era. During his life, Vasily Nikitich occupied major political and economic posts. Twice appointed to the Urals as the chief ruler of mining plants; was the head of the Orenburg expedition and the Astrakhan governor. In 1745 he fell into disgrace (under Elizabeth) and lived out his days in the Boldino estate near Moscow, where he completed his work "Russian History", and also wrote a number of works on geography, economics, politics and education. In his reasoning about the origin of the state, the thinker used the hypothesis of a pre-contractual "state of nature", in which "the war of all against all" dominates. The reasonable need of people for each other led them to the need to create a state, which he considers as the result of a social contract concluded in order to ensure the security of the people and "search for the common good." Tatishchev is trying to introduce historical principles into the process of state formation, arguing that all known human communities arose historically: at first, people entered into a marriage contract, then a second contract arose from it between parents and children, then gentlemen-servants. In the end, families grew and formed entire communities that needed a head, and the monarch became him, subordinating everyone just like a father subdues his children. As a result, not one, but several contracts are obtained, and their very conclusion, apparently dependent on people, is in fact predetermined by nature itself. Such rigid forms of lack of freedom as slavery and servitude, V.N. Tatishchev condemned. Analyzing the reasons for the emergence of serfdom in Russia, Tatishchev attributed them to the indignations that shook the country during the Time of Troubles. However, he was not consistent in this matter. VN Tatishchev insisted on establishing the legal and economic status of the main classes in the state, the orderly state of which would give strength to the state structure. He considered the military and public service to be the main occupation of the nobles, believing that their privileges should correspond to their status. The state was entrusted with the care of the merchants and the establishment of free trade rules. The merchants, in turn, need to "know the state of bargaining", and the townspeople - "crafts perfect properties and tricks." Tatishchev was worried about saving public funds. Since he repeatedly expressed hope for a peaceful policy of Russia, he accordingly advised to have an army in the country only for defense purposes. Tatishchev would like to see educated and thinking people in the army, and not only in the officer corps, but also in the lower ranks. All his reasoning on this issue boils down to a proposal to form a small but well-trained army, the maintenance of which would not be burdensome for the country. Tatishchev paid much attention to the consideration of the forms of the state. He made the presence of this or that form of government dependent on the size of the country's territory and the degree to which its external security was ensured. The best form of government for Russia V.N. Tatishchev considered the monarchy, while he noted the advantages of the monarch's reliance on a bicameral elected body, established "for the best state benefit of government."

With a general assessment of the views of V.N. Tatishchev, it is necessary to take into account the censorship conditions, as well as the tragic vicissitudes in his life (repeated removals from office, disgrace), which undoubtedly led to a certain caution in presenting his political views.

52. POLITICAL AND LEGAL DOCTRINE A.N. RADISCHEVA

Alexander Nikolaevich Radishchev (1749-1802) Born in the Saratov province in a noble family with large land holdings. He received a good education at home, graduated from the Corps of Pages in St. Petersburg and the Faculty of Law of the University of Leipzig, while constantly engaged in self-education. He studied the history of ancient states, the works of English and French political thinkers of modern times, mastered several ancient and European languages. At the end of his studies, the path to a service career opened before him, in which he quickly rose to the position of head of the St. Petersburg customs, but soon left the service and devoted himself entirely to literary works. He saw his personal duty to the fatherland in the fight against serfdom and autocracy. His famous work "Journey from St. Petersburg to Moscow" is devoted to this topic. Radishchev considers autocracy as a state "the opposite of human nature." He did not believe in the possibility of an enlightened monarch appearing on the throne. Radishchev also criticizes the bureaucratic apparatus on which the monarch relies, noting the lack of education, depravity and venality of officials surrounding the throne. He draws attention to the peculiarity of Russian government - the presence of an independent bureaucracy, which has no connection with both the monarch and the people. Radishchev constructs his positive scheme based on the initial provisions of the theory of natural human rights and the contractual origin of the state. The reason for the formation of the state, according to Radishchev, is the natural sociality of people. In the state of nature, all people were equal, but with the advent of private property, this equality was violated. Like Rousseau, he believed that the emergence of the state is associated with the formation of private property. The state arose as a result of a tacit agreement in order to ensure a good life for all people, as well as to protect the weak and oppressed. When concluding a treaty, the people are the determining party and reserve sovereignty. He could not agree to slavery, as it would be unnatural. Serfdom, according to him, is a violation of natural laws, in addition, it is economically untenable, since forced labor is unproductive, and the moral decline of the people is also associated with it. Radishchev draws attention to the absence in the laws of the legal status of a serf. The social ideal of Radishchev is a society of free and equal owners. In such a society, social privileges are abolished, the nobility is equal in rights with all other estates. The table of ranks is liquidated, the bureaucracy is reduced and becomes controlled by a representative body. The best political organization of such a society is the people's government, formed in the image of the northern Russian feudal republics of Novgorod and Pskov. According to Radishchev, the people of Russia have long been committed to the republican form of government. He does not recognize the concept of separation of powers, because only the people can be a true sovereign. The people elect magistrates, concentrating all power in their own hands.

1) thoughts;

2) words;

3) acts;

4) in protecting oneself when the law is unable to do so;

5) in the right of ownership;

6) be judged by your peers. Radishchev adhered to a peaceful orientation in international relations and actively opposed aggressive wars and defended the idea of equality of all peoples. Ideals of A.N. Radishchev were adopted by Russian political thought and developed in the works of the Decembrists, and then in revolutionary democratic theory.

53. FORMATION OF AMERICAN POLITICAL AND LEGAL THOUGHT

There are two characteristic periods in the socio-political history of the English settlement colonies in North America. The first is at the beginning of the XNUMXth century. and extends to the middle of the XNUMXth century, and the second covers the period of the War of Independence, the development of the constitution and the first steps towards its implementation in the life of an independent state (second half of the XNUMXth century). The colonization of North America by the British was carried out in an atmosphere of military rivalry with Holland, France, and partly with Spain. It was accompanied by a selfless struggle against the threat of starvation and disease, as well as unsuccessful attempts to enslave the Indians. Among the first settlers, along with the peasant and artisan poor, were enterprising merchants and entrepreneurial adventurers. Second half of the XNUMXth century marked by an aggravation of conflicts between the metropolis and the colonies, which renamed themselves states (i.e. state), on the basis of taxation. After the end of the Seven Years' War in 1763, England resorted to direct taxation of the North American colonies, which opposed this and put forward a number of arguments of a constitutional right nature. The most obvious objection was referring to the experience of British constitutional practice, according to which the imposition of taxes is unacceptable without the consent of the representatives of the taxpayers in Parliament. Some publicists used the natural law ideas of S. Pufendorf and J. Locke. The first to put forward the argument that the inhabitants of the colonies, as free subjects of the crown, are endowed with all the "innate rights and freedoms of the English" and therefore have the right to have their representatives in legislative assemblies (he referred to colonial assemblies as such), was John Dickinson (later these ideas are most successfully developed by T. Jefferson). B took a different position. Franklin, who since 1766 developed the concept of home rule (self-government) and argued that the emigration of the British to America meant their complete break with the laws and the Constitution of England. According to this logic, the colonists could no longer be considered British subjects by virtue of the very fact of resettlement in the New World and therefore should not be subject to the decisions of the British Parliament. Natural legal argumentation, i.e. the appeal to the "natural and inalienable rights of man," regardless of his nationality, has intensified in America since 1744, when the unwillingness of the English parliament to make concessions became obvious. In the political pamphlets of John Adams, Thomas Jefferson, and Alexander Hamilton, the political demands of the settlers-colonists received mainly natural law justification. Shortly before the solemn announcement of the US Declaration of Independence (July 4, 1776), the idea of inalienable and natural rights was recognized not only in journalism, but also in political and constitutional documents. The Virginia Declaration of Rights of June 12, 1776, written by George Mason and edited by James Madison, first formalized that all men are by nature free, independent, and have certain unalienable rights which they cannot renounce when entering into society, and which cannot deprive their offspring of the rights to life and liberty, as well as to the pursuit of happiness and security (Art. 1). The people have the right to change the government, which does not meet its purpose - to ensure the achievement of the common good and security. Declaration of Independence written by T. Jefferson with the participation of B. Franklin and J.

54. POLITICAL VIEWS OF B. FRANKLIN

Benjamin Franklin (1706-1790) became world famous thanks to scientific works on electricity, as well as asceticism in the field of enlightenment and diplomacy. Republican sympathies scientist-encyclopedist brought him closer to the supporters of the independence of the colonies. At the end of 60-ies. he refuses to perceive the British Empire as a single political entity and develops the idea of home rule, i.e. self-government and political self-determination of the North American provinces. The beginnings of such a plan arose from Franklin as early as 1754, when he came up with the idea of a military-political union of the colonies in order to counter the French troops and the Indian tribes supporting them. But this plan was thwarted by the disunity of the colonies and the fact that they were more attached to England and the direct will of the crown than to each other. In 1769 Franklin was the first to name the North American provinces states (states). Franklin owns one version of the state confederation plan. He was an active participant in the drafting of the Articles of Confederation of 1781, as well as the Declaration of Independence and the draft federal Constitution at the Philadelphia Convention. Franklin was not a supporter of radical political change. Throughout half a century of public activity as a publicist, a member of the elected assemblies of Pennsylvania or a diplomat in London and Paris, he has consistently defended the idea of the independent and harmonious development of his country as a "country of labor", in which there is no sharp polarization between rich and poor, between the luxury of one and asceticism. others, where people live in a state of "happy moderation", where the simplicity of republican mores determines all material preferences and political skills. His view of the rapid progress of North America due to the growth of population, territory and social achievements was associated with the hope that there would be an improvement in that area of knowledge, which, in his opinion, was ignored for a long time and did not develop in Europe, namely, the science of politics. Franklin was neither a simple-minded democrat nor a demagogue. At the news of the beginning of revolutionary actions in France, he expressed great anxiety due to the fact that "the fire of freedom can not only purify, but also destroy." In the noise of the crowd, Franklin reflected, the voice of philosophy is unlikely to be heard, but under these conditions, how will reasonable people call on the nation to enter a new era? Such questions characterize him more as a supporter of social evolution and reform than as a radical. In the eyes of his compatriots, Franklin still looks today as one of the great minds in all of American history. Some scholars consider him the founder of a characteristic utilitarianism - earlier than that of Bentham, and more flexible than that of Helvetius. According to historian P. Conner, if in Helvetius morality and legislators forcefully lead to valor in acquiring the "greatest good", Franklin has a reservation on this score that the individual himself has the privilege to determine what is valorous, and to choose between exhortation, persuasion and legal demand. In the utilitarianism of the French philosopher, flexible goals and rigid means are combined, while in Franklin the clarity of the goal is softened by flexibility in the way it is realized. It is characteristic that through the efforts of Franklin and some other leaders of the American Revolution, the ideological legacy of Greco-Roman thought was brought to the defense of American republicanism, which needed not only institutions and rules of activity, but also a special political philosophy.

55. T. JEFFERSON'S POLITICAL VIEWS

Thomas Jefferson (1743-1826), like many eminent contemporaries, combined philosophy with state and social activities. He devoted his largest work to the historical and state structure of his native state of Virginia ("Notes on the State of Virginia", 1785), his most famous work is the Declaration of Independence of the United States (1776). The son of a provincial planter, he successfully passed through many stages of a political career from a practicing lawyer and county police officer to state governor and then president of the country. There is a certain evolution in his political preferences from radical, often utopian programs to moderate liberal principles. Significant merits of Jefferson in the education and promotion of free thought - he was the author of the State Law on the Establishment of Religious Freedom (1777), the president of the American Philosophical Society, the guardian of the university, built in Virginia according to his own architectural project. He considered public education (from elementary school to university) as an inalienable attribute of a democratic republic, as well as natural human rights, as the people's right to self-government. Already in his first significant work, "A General Survey of the Rights of British America" (1774), published as an anonymous pamphlet as an appeal to the English king, the young philosopher and publicist substantiated the thesis about the need to return to the people "the rights received under the laws of nature." It is characteristic that the appeal to the king for assistance was written in the "language of truth" and was "devoid of expressions of servility." It is also significant that the king himself was characterized "nothing more than the chief official of his people, appointed by law and endowed with a certain power to help the work of a complex state machine set up to benefit the people, and therefore subject to control by the people." In Notes on the State of Virginia, Jefferson speaks out on the future of democracy in America. He does not leave the hope that humanity will soon "learn to benefit from every right and power that it owns or can assume." While collecting the money of the people and protecting the freedom of the people, one should not at the same time entrust it to those who fill the institutions of the legislative, executive and judicial powers, especially when they are not under any restrictions. Jefferson is convinced that soon "corruption in this country, as in the one from which we come, will take hold of the government and spread to the bulk of our people, when the government buys the votes of the people and makes them pay the full price. Human nature is the same on both sides of the Atlantic Ocean and will remain the same under the influence of the same circumstances. It's time to beware of corruption and tyranny before they take over." Defending the right to freedom of religion, Jefferson classified it as a natural right and therefore not transferable to any government. Republican principles in the organization and activities of the state should consistently permeate all levels - the organization and activities of the federation (on foreign and federal policy), the state (in relation to citizens), as well as the district, district and separate parish (on local issues).

56. POLITICAL AND LEGAL VIEWS OF A. HAMILTON

Recognized leader of the Federalists Alexander Hamilton (1757-1804) was an outstanding statesman of wide scope and outlook, the author of profound developments in the power of constitutional theory and practice, and a vigorous defender of the strong centralized power of the federal government.

Representatives of the federalist centralists were very far from placing their main emphasis on the wisdom and justice of those who were involved in the affairs of the state. Sharing the opinion of democrats about the need for the supremacy of the power of the people in the state, they at the same time connected this with the need to curb the bad qualities and inclinations of people, since without such curbing they would never obey the dictates of reason and justice. In a collection of commentaries on the draft federal constitution, entitled "Notes of a Federalist," all varieties of power and government are examined with the care of experimenters, for whom every institution is the work of man—a human invention, having its own advantages and disadvantages. In this assessment of political realities, the Federalists were noticeably closer to the democratic enlighteners and the scientific enlighteners, who, like Franklin, also recognized the existence of a conflict between the benefits of collective wisdom (parliaments and councils of the colonies) and the prejudices, passions, and personal interests of people, with the result that the common interest almost always yields to the private, and rogue legislators always plot against the wise men who sit with them.

Hamilton shared the opinion of J. Adams that the establishment of a system of checks and balances in the sphere of power is necessary due to the indestructible selfishness of people who must be forced to cooperate in the name of the common good, despite their irrepressible greed and ambition. Without taking this circumstance into account, any constitution turns into empty boasting. The people are but a great beast to be reckoned with by the wise ruler, insofar as strife and discontent may threaten his power.

Hamilton is one of the three authors of the Federalist articles published between October 1787 and May 1788 under the pseudonym of the ancient Roman patriot of the republic, Publius Valerius. All three participants were among the drafters of the Constitution, all of whom later held key positions in government: Hamilton - the post of Minister of Finance, J.J. - Chairman of the Supreme Court, J. Madison - the fourth president of the country.

In justifying the ways and means of preserving the new federal union of states, Hamilton often resorted to deliberately simplistic arguments that sound plausible enough but are difficult to prove. Thus, in No. 23 of The Federalist, he argued for the unlimited powers of the new government in the field of defense, on the ground that it was impossible to foresee or determine the extent and variety of the needs of the nation in this field, as well as the extent and variety of necessary means.

More thorough is his argument, set out in Art. 78 "Federalist". In Hamilton's view, life-appointed, independent, respected and well-paid members of the court are in a position to ensure governance with due accountability. They will be able to do so in part because they themselves are unelected and irresponsible. The Supreme Court, moreover, created the least, in his opinion, a threat to the rights granted by the Constitution. The executive has the sword, the congress has the purse, and the judges have only wisdom.

57. POLITICAL IDEAS J. ADAMSA

John Adams (1735-1826) in his political views he belonged to the group of federalists. The author of the first fundamental work on issues of state and political science, a consistent opponent of majority rule and one of the ideological forerunners of modern conservatism. Adams supported Jefferson in justifying the legislative and administrative independence of the colonies, proving with the help of new historical and legal arguments the absurdity and injustice of submission to a parliament located three thousand miles away. Moreover, corrupt England, mired in debt and electoral corruption, was simply deprived of any moral right to pretend to be the ruler of Puritanically respectable New England. J. Adams was one of the first to highlight the issue of state structure as extremely important and topical. In his extensive three-volume monograph “In Defense of the Constitutions of Government in the United States of America” (London, 17871788-XNUMX), he substantiated the need for the separation and independence of the three branches of government (legislative, executive, judicial). At the same time, we were talking about a strong executive branch and the so-called system of containment and mutual balancing of powers (“checks and balances”). Unlike Payne, he admitted and recognized the expediency of a monarchical form of government under one important condition - if the nobility is able to control (restrain) the king, ministers - to control the nobility, etc.

All simple forms of government - monarchy, aristocracy, democracy - looked in his interpretation as the embodiment of despotism. Adams' ideal is a mixed form of government, in particular a three-element balance: the executive branch, the upper aristocratic and lower democratic house of parliament - all this together forms a certain form of balanced public power. He justified the organization of interaction between the three branches of state power with excerpts from Cicero’s treatise “On the Republic” and specifically clarified that this form is most suitable for implementing the laws of the state and implementing the principle of “rule by laws, not people.” The branches of government must not only act, but also be perceived as a harmoniously composed whole, like the beautiful three-part compositions in the work of Handel. Adams' historical comparisons of various government forms surprised his contemporaries with the breadth of his review and careful selection of events and facts. In addition to the experience of the Greeks and Romans, he thoroughly analyzed all the known systems of state structure in Europe and carried out a comparative analysis of them with the experience of individual American states. The external reason for writing “In Defense of Constitutions in the United States” was the criticism of the American constitutional experience by Turgot, who considered the unicameral structure of the highest legislative institution most suitable for American conditions. One of the central ideas that occupied Adams was the justification for the inevitability of the existence of social differences and all kinds of social groupings and classes (the class of gentlemen, the class of ordinary people, etc.). The historical and factual materials he collected were grouped in such a way that the aristocracy appears in history as the dominant element in every civilized society from antiquity to the present day (at this point of his historical hypothesis, J. Adams is the predecessor of a number of classics of modern political sociology and cultural studies - V. Pareto, A. Toynbee and others). Polemicizing with the romantic constructions of Paine or Jefferson, he loved, according to the historian V. Parrington, to pour cold water of common sense on their ardent hopes for the revival of freedom and justice based on political institutions alone.

58. THE DOCTRINE OF I. KANT ABOUT THE STATE AND LAW

Professor of Philosophy at the University of Königsberg Immanuel Kant (1724-1804) In Germany, he was the first to systematically substantiate liberalism - the ideological platform of the bourgeois class, who emerged from the conglomerate of the third estate, realized their place in society and sought to establish economic and political freedom in the country. Kant's political and legal views are contained mainly in the works "Ideas of World History from a Cosmopolitan Point of View", "Towards Eternal Peace", "Metaphysical Principles of the Doctrine of Law".

The cornerstone principles of the social views of I. Kant: each person has perfect dignity, absolute value; a person is not an instrument for the implementation of any plans, even the noblest plans for the common good. Man - the subject of moral consciousness, fundamentally different from the surrounding nature - in his behavior must be guided by the dictates of the moral law. This law is a priori, not subject to the influence of any external circumstances and therefore unconditional. Kant calls it the "categorical imperative", thereby striving to emphasize more strongly the abstract-obligatory and formalistic nature of this prescription.

According to Kant, the true vocation of law is to reliably guarantee morality the social space in which it could normally manifest itself, in which the freedom of the individual could be freely realized. The exercise of a right requires that it be universally binding. General obligatoriness is achieved through endowing it with coercive force. Only the state, the primordial and primary bearer of coercion, is capable of imparting to law the property it needs so much. According to Kant, it turns out that statehood is brought to life and its existence is ultimately justified by the demands of the categorical imperative. Thus, in Kant's teaching, one of the main bridges is thrown from ethics and law to the state.

The advancement and defense of Kant's thesis that the good and purpose of the state is in perfect law, in the maximum conformity of the structure and regime of the state to the principles of law, gave reason to consider Kant one of the main creators of the concept of "rule of law". Kant repeatedly emphasized the urgent need for the state to rely on law, to orient its activities on it, to coordinate its actions with it.

Freedom within the framework of the legal state, in turn, provides for freedom of criticism. Feudal lack of rights and arbitrariness Kant contrasts with a firm legal order based on generally binding laws. He condemns the legal privileges that flow from the possession of property and insists on the equality of arms in private law relations. However, Kant makes a serious concession to feudal ideology when he recognizes not only the things and behavior of people, but also the person himself as an object of private law.

The central institution of public law is the prerogative of the people to demand their participation in the establishment of the rule of law by adopting a constitution expressing their will.

Kant did not interpret the idea of the separation of powers in the state, drawn from Montesquieu, as the idea of a balance of powers. In his opinion, every state has three powers: legislative (belonging only to the sovereign "collective will of the people"), executive (concentrated with the legitimate ruler and subordinate to the legislative, supreme power), judicial (appointed by the executive power). The subordination and agreement of these three authorities can prevent despotism and guarantee the welfare of the state.

59. POLITICAL AND LEGAL THEORY I.G. FICHTE

In the views of an outstanding philosopher and public figure Johann Gottlieb Fichte (1762-1814) the duality and inconsistency of the political tendencies of the German burghers were much more distinct, brighter, more striking than in Kant. Fichte's general theoretical views on the state and law are developing in line with the natural law doctrine. The methodological, philosophical basis of the views is distinguished by its originality. Fichte is a convinced subjective idealist, for whom the material world in all its countless aspects exists only as a sphere of manifestation of the freedom of the human spirit; outside of human consciousness and human activity there is no objective reality. According to Fichte, law is derived from "pure forms of reason". External factors have nothing to do with the nature of law. The need for it dictates self-consciousness, because only the existence of law creates the conditions for self-consciousness to reveal itself. However, law is not based on individual will. It is constituted on the basis of mutual recognition by individuals of the personal freedom of each of them. To guarantee the freedom of an individual and to combine with it the freedom of all, a legal community of people is needed. The core of such a legal community should be a legal law arising from the relationship of rationally free beings, and not from a moral law. Law functions independently of morality, regulating exclusively the area of actions and actions of a person. The need to ensure the personal rights of people determines the need for the state. Coercive force in the state cannot be an individual will. It can only be a single collective will, for the formation of which the consent of all is needed, an appropriate agreement is needed. And people conclude such a civil-state contract. Thanks to him, statehood is established. The general will of the people is the core of legislation and determines the boundaries of the influence of the state. Thus, the democrat Fichte sought to stop the arbitrariness of absolutist police power over his subjects and, relying on the natural law doctrine, to establish political rights and individual freedoms. Without hiding his sympathy for the republic, Fichte noted that the hallmark of any reasonable, consistent with the requirements of the law of the state should be the responsibility of the persons exercising control to society. If there is no such responsibility, the state system degenerates into despotism. So that popular sovereignty remains an empty phrase and the government strictly obeys the law, Fichte proposes to establish an ephorate - a permanent control, supervisory authority, whose representatives, the ephors, are elected by the people themselves. The ephors can suspend the actions of the executive, as soon as they see them as a threat to the rule of law. The final assessment of the actions of the government is given by the people. Later, in 1812, Fichte recognized the idea of creating an ephorate as unrealistic. He strongly defended the idea of the supremacy of the people. Hence the categorical conclusion about the unconditional right of the people to any change in the state system that is objectionable to them, about the right of the people as a whole to revolution. True, since about 1800. Fichte moves away from such radical positions and begins to rely more and more on reforms from above. Nevertheless, the conviction of the urgent need to liberalize the political regime, abolish estate privileges, establish firm legality, and ardent sympathy for the masses of the people never left Fichte. Until his last days, he was devoted to the humanistic ideology of the Enlightenment, remained a supporter of bourgeois-democratic reforms.

60. HEGEL'S DOCTRINE OF THE STATE AND LAW

The problems of state and law were in the center of attention Georg Wilhelm Friedrich Hegel (1770-1831) at all stages of the creative evolution of his views. This topic is covered in detail in many of his works, including such as "The Constitution of Germany", "On the scientific methods of studying natural law, its place in practical philosophy and its relation to the science of positive law", "Phenomenology of the Spirit", "Report Estates Assembly of the Kingdom of Württemberg", "Philosophy of Spirit", "Philosophy of Law", "Philosophy of History", "English Reform Bill of 1831" and more The philosophy of law is an important component of the entire Hegelian system of philosophy. The main task of the philosophy of law is the scientific knowledge of the state and law, and not an indication of what they should be. In the philosophy of law, Hegel just illuminates the forms of the discovery of an objectively free spirit in the form of the realization of the concept of law in reality. Law, according to Hegel, consists in the fact that existence in general is the existence of free will, the dialectics of which coincides with the philosophical construction of the system of law as a realm of realized freedom. Freedom, according to Hegel, is the substance and the basic definition of the will. We are talking about a developed, rational will, which is free. Society and the state are related as reason and reason: society is the "external state", "the state of need and reason", and the true state is reasonable. Therefore, in the philosophical and logical terms, society is regarded by Hegel as a moment of the state, as something that is "removed" in the state. Civil society in the illumination of Hegel is a system of needs mediated by labor, based on the domination of private property and the general formal equality of people. The formation of such a society, which did not exist in antiquity and in the Middle Ages, is associated with the establishment of the bourgeois system. The state is, according to Hegel, the idea of reason, freedom and law, since the idea is the realization of the concept in the forms of external, existing being. The idea of the state, therefore, is a legal reality, in the hierarchical structure of which the state itself, being the most concrete law, appears as a legal state. The state as the reality of concrete freedom is the individual state. In its developed and reasonable form, such a state is, according to the Hegelian interpretation, a constitutional monarchy based on the separation of powers. The three different powers into which the political state is subdivided, according to Hegel, are: the legislative power, the government power and the power of the sovereign. Hegel criticizes the democratic idea of popular sovereignty and substantiates the sovereignty of a hereditary constitutional monarch. Governmental power, to which Hegel also refers judicial power, is defined by him as the power to bring special spheres and individual cases under the universal. The task of government power is the implementation of the decisions of the monarch, the maintenance of existing laws and institutions. Legislative power, according to Hegel, is the power to determine and establish the universal. The Legislative Assembly consists of two chambers. The upper chamber is formed according to the principle of heredity and consists of the owners of the majorate estate.

61. POLITICAL AND LEGAL VIEWS OF M.M. SPERANSKY

MM. Speransky (1772-1839) - a prominent political figure in Russian history. In 1826 Emperor Nicholas I entrusted him with the compilation of the Code of Laws of the Russian Empire. A commission under the leadership of Speransky incorporated this Code in four years and amounted to 45 volumes that had historical and chronological significance, and three years later a fifteen-volume edition was prepared codifying the current legislation. Nicholas I awarded M.M. Speransky for this work with the St. Andrew's Star. Russia, according to Speransky, went through three stages in its historical development: in the Middle Ages - appanage; in modern times - an absolute monarchy, and in the present period - an industrial state that requires a constitutional limitation of supreme power and the granting of political and civil rights to all subjects. Russia, he believed, was waiting for change, but not in a revolutionary way, as in the countries of the West, but exclusively in an evolutionary way, "through the right laws" granted by the emperor to the people. The legitimacy of the forms of exercise of power Speransky associated with the need for separation of powers. Legislative power should be handed over to the bicameral Duma, which discusses and adopts laws, for which it meets in sessions. The head of the executive branch - the monarch - participates in the activities of the Duma, but "no new law can be issued without the respect of the Duma. The establishment of new taxes, taxes and duties is respected in the Duma. Judicial power is exercised by the judicial system, which includes a jury trial and ends with the highest judicial body - the Senate. Three authorities govern the state in the same way as a person - his body: referring to the law, will and execution. Speransky also provided for the possibility of combining the efforts of various authorities for their concerted action in the State Council, consisting partly of persons appointed by the monarch, and partly elected by electoral laws. The State Council sits under the chairmanship of the tsar, it has the right of legislative initiative, but the laws are approved without fail and exclusively by the State Duma. Thus, the State Duma has a legislative status. The organization of local government involves the introduction of collegial management from top to bottom through a system of representative bodies - dumas: provincial, district and volost, elected on a multi-stage basis. In the spirit of the provisions of Sh. Montesquieu on civil and political rights Speransky analyzes the concepts: political slavery and political freedom, civil slavery and civil freedom. By political slavery, he understood such a state, "when the will of one is the law for all," and defined political freedom as the submission of everyone and everyone to laws, as well as the provision of suffrage. Under civil slavery, he understood the subordination of one to another, and civil freedom, in his opinion, is expressed in the independence based on the law from each other of all classes and groups in society. As a whole, Speransky did not encroach on the estate system of society, but proposed to legalize it with the consolidation of the rights and obligations of the estates. In his projects, he endowed the nobility with all the political and civil rights of additional ownership of lands inhabited by peasants, with the obligation to pay tax for land ownership. The middle class (owners of any form of real estate) he granted all civil rights, and political - depending on the size of the property. He endowed the working people only with civil rights. Speransky had a negative attitude towards serfdom.

62. POLITICAL IDEAS N.M. KARAMZINA

The beginning of the creative path N. M. Karamzin (17661826) associated with the literary field. He took an active part in publishing, and also declared himself as a writer and founder of a new direction in literature - sentimentalism. In 1803 Karamzin parted with the publishing house and focuses his attention on the creation of the "History of the Russian State". Karamzin expressed his political concept even in the Bulletin of Europe published by him, which was practically the first political journal in Russia, where, along with the publication of political writings by ancient, French, English authors, Karamzin expounded his views on the forms of government, political regimes, the content of laws and etc. But its political concept received a consistent and detailed development precisely in the History of the Russian State, and concretization - in the Note on Ancient and New Russia in its Political and Civil Relations, compiled in the name of Tsar Alexander I in 1811. The main theme of the Notes was the study of the forms of government most suitable for Russia. Using the example of an analysis of the reign of Ivan IV, Karamzin subjected tyranny to reasoned criticism. In his discussions about the form of government, Karamzin repeatedly emphasized that he was a republican at heart, adding that it was quite possible to remain a republican even under a monarchy. The very concept of a republic as an organization of state and public life for him meant the achievement of freedom and security by all citizens with a high moral status of society. Ideal N.M. Karamzin was a strong monarch (not necessarily hereditary), based in his activities on the laws and taking measures for the moral education and political enlightenment of the peoples of his country. Karamzin's preference for a monarchical form of government is also motivated by geographical factors. The historian believed that the vastness of the territory of Russia, the size of its population and its former historical greatness predetermined it to the monarchy. Much attention in the "Note" is given to criticism of the state apparatus, its incompetence, bribery of officials of all ranks, and complete irresponsibility. He sees the restructuring of this link of state administration not in the creation of new institutions, but in the training of competent, specially trained personnel. Officials, when placing them in positions, should be properly organized, i.e. to distribute according to ranks in accordance with knowledge and abilities and to encourage them in every possible way to fulfill their official duty by a system of rewards and punishments. But the main beginning of good government consists in weakening the prerogatives of the central government and expanding the powers of local government, because only the local government knows the true state of affairs in the provinces. Karamzin paid attention to the class organization of society, in the structure of which he singled out: the clergy, the nobility, the merchants, the peasantry and other people. He considered the nobility as an estate enjoying special privileges, provided with respect and prosperity. Nobles should hold high positions in the army and in the public service, but nevertheless it is impossible to "block the way" to the ranks and ranks of the lower classes if they have the ability and have "excellent knowledge". The clergy is a "teaching class", it must have a high moral potential and educational level. He should be well trained in special institutions and adequately provided.

63. POLITICAL PROGRAMS OF THE DECABRISTS

The reign of Alexander I contributed to the emergence of opposition organizations united in societies: "Order of Russian Knights" (1815) "Union of Salvation" (1818) "Prosperity Union" (1818) and, finally, on the basis of the collapse of the latter Northern and Southern societies. Their participants drew up programs providing for various options for changing the Russian absolute monarchy and eliminating serfdom.

Pavel Ivanovich Pestel in order to transform society and the state, he enters into secret alliances and subsequently becomes the organizer and head of the Southern Society, for which he creates "Russian Truth" as a theoretical program for further actions. According to his philosophical views, P.I. Pestel was a materialist and an atheist. In his social views, he proceeded from the position of the natural equality of all people and the mutual desire for social life to meet needs on the basis of the division of labor. The state organization in Russia does not serve to achieve social welfare and therefore is characterized by Pestel as "evil power", bringing humiliation to the country and people, overthrow of laws and, ultimately, the death of the state itself. Russkaya Pravda offers a plan for social and political transformations in Russia, as well as a set of means for its implementation. Social program P.I. Pestel is radical. He demands the abolition of serfdom and the granting of free land to all peasants. The political ideal of P.I. Pestel is a republic. In the organization of the supreme power in the state, Pestel distinguishes between the supreme legislative power and management (executive power). The supreme power is entrusted to the People's Council, the executive power to the Sovereign Duma, and the supervision of their activities to the Supreme Council, which has vigilant power. Russkaya Pravda pays great attention to substantiating the need to introduce general democratic rights and freedoms: personal inviolability, equality, freedom of conscience, speech, assembly, etc.

The head of the Northern Society spoke with his drafts of the Constitution Nikita Mikhailovich Muravyov (1796-1843). N.M. Muravyov was a deeply religious man, and in his teaching the arguments of the natural law doctrine are intertwined with the provisions of the New Testament teaching. From the standpoint of the school of natural law and the theory of contractual origin of the state N.M. Muravyov condemned the monarchy, considering this form of government unnatural. The source of power is the people, who have the exclusive right to make fundamental decisions for themselves. Each people forms its own state by agreement, but at the same time it retains its sovereignty and does not lose its natural rights. The first event in a series of reforms proclaimed by N.M. Muravyov, was the abolition of serfdom. The form of government that is best for Russia, N.M. Muravyov considered a constitutional monarchy based on the principle of separation of powers, which creates the necessary guarantees for mutual control of the highest authorities in the state.

Legislative power was handed over to the People's Council, "composed of two chambers: the Supreme Duma and the House of Representatives." All adult residents (except for persons in private service) who have movable or immovable property enjoy the right to vote. The Supreme Duma is elected for a period of 6 years and is renewed every two years by one third of its membership, with a total number of 45 members. The House of Representatives consists of 450 members and is elected for a term of 2 years.

64. POLITICAL IDEAS P.Ya. CHAADAEV

Pyotr Yakovlevich Chaadaev (1794-1856) was at one time a member of the Union of Welfare, but after leaving military service under the influence of in-depth study of philosophy, he radically revised his attitude to ways to achieve the common good. Classes in the development and formulation of a new worldview required considerable effort; they resulted in eight "Philosophical Letters", written during a 4-year retreat. After the publication of the first letter in 1836 its author was declared insane and subjected to medical supervision and house arrest. Subsequently, he took an active part in the controversy between Westerners and Slavophiles and had a great influence on the course and content of this controversy. The interpretation of the peculiarities of Russian history is imbued with a combination of theological and progressivist motives and arguments. He saw the main reason for the backwardness and stagnant existence of Russia in the lack of connection between the stages of its history, as well as in the absence of progressive social and cultural traditions. All this turned Russia into a society without the discipline of forms, in particular the discipline of logic, the law of social conventions. In comparison with the Roman Catholic family of peoples, Russia, as it were, has fallen away from the human race. After being criticized by the Slavophiles for his unflattering remarks about slavery in Muscovite Russia, after being accused by conservatives of contemptuous anti-patriotism, Chaadaev admits the fact of "exaggeration", but rejects attacks on the chosen way of expressing patriotic feelings. The socio-political program of the Slavophile school Chaadaev referred to the category of retrospective utopias. Disagreeing with the Slavophils in assessing the "benefits of our isolated situation," Chaadaev approached those of them who perceived stagnation as "saving immobility" in an era of upheaval. In his ideas about the ways of salvation, he was no less utopian than his opponents. His program was designed taking into account the same small number of fundamental factors (religion, enlightenment and ennoblement of morals) as those of the Slavophiles (community, religion, autocracy). About the European revolutions of the 40s. he spoke of the fall of mankind into barbarism and anarchy and the onset of the era of the domination of "mediocrity". Under these conditions, he saw Russia's vocation in "giving in due time a solution to all questions raising disputes in Europe." About the prospects of socialism, he remarked, not without insight, that "socialism will win not because it is right, but because its opponents are wrong." With all the sympathy for the Roman Catholic world of peoples, in which he found a harmonious combination of religion with politics, as well as with science and the spirit of social transformations, he paid tribute to the fruits of Orthodoxy in Russia: here the fruits were not science and a comfortable life, but "spiritual and the mental structure of a person - disinterestedness of the heart and modesty of the mind, patience and hope, conscientiousness and self-denial. To him we owe all the best national qualities, our greatness, everything that distinguishes us from other peoples and creates our destinies. We are called, Chaadaev noted, to be a real conscientious court in many litigations that are being conducted before the great tribunal of the human spirit and human society. Among his own merits to Russia, he included "love of the Fatherland in its interests, and not in his own," as well as his desire to acquire his own ideas instead of "representing ideas." His generalizations of Russian and general history had a beneficial effect on similar work among Westerners and Slavophiles, as well as on the position of the Marquis de Custine, author of Russia in 1839. His reflections on the role and fate of church life in the Orthodox East and the Catholic West were picked up and continued by Vl. Solovyov.

65. POLITICAL AND LEGAL VIEWS OF THE SLAVOPHILS AND WESTERNERS

At the turn of the 30-40s. Among the noble intelligentsia, two currents of social and political thought developed under the conditional names of Slavophiles and Westernizers, who, in the best traditions of Russian enlighteners and reformers, discussed the issues of the historical fate of Russia, its place and role among other peoples, the features of its political and legal experience in comparative historical comparison with the experience of Europe and the peoples of the East.

The initial event in the development of the ideas of the early Slavophiles is considered to be the exchange in 1839 of abstracts between Alexander Stepanovich Khomyakov (1804-1860) и Ivan Vasilyevich Kireevsky (1806-1856) on the question of the historical experience of old and new Russia. These two essays then went on lists under the titles "On the old and the new" and "In response to A.S. Khomyakov." The Slavophils put forward a number of new ideas and provisions in assessing the past and modern experience of Russia, in particular, the need to reassess the experience of pre-Petrine Russia, the importance of the peasant community, local self-government, the role of the state principle and the relationship between law and custom within their general concept of national knowledge. They were unconditional opponents and critics of serfdom. Serfdom, according to Khomyakov, was introduced by Peter. The actual slavery of the peasants existed before that in custom and was not recognized in law. Only in the reign of Peter "the law agreed to take responsibility for the abomination of slavery, already introduced by custom." Thus, the law "consecrated and rooted the long-creeping abuse of the aristocracy."

In a response to Khomyakov, Kireevsky noted the incorrectness of posing the question: was the former Russia worse or better than the present, where "the order of things is subject to the predominance of the Western element." The social structure of Russia had many differences from the West. Merit in the development of communal customs, which replaced the laws, Kireevsky entirely attributed to churches and monasteries. He also calls the latter "the holy embryos of unfulfilled universities." The general conclusion of Kireevsky, like Khomyakov, was that in the history of Russia there really is a "mutual struggle of two principles" and it is connected with the desire to "return the Russian or introduce the Western way of life", but this struggle nevertheless unwittingly suggests "something third ". Slavophiles considered the abolition of serfdom and the introduction of a new division of labor between state power (autocracy) and the public (the people) two urgent and promising tasks in the field of internal political life.

The main thesis of another program task was formulated by Konstantin Sergeevich Aksakov in the note "On the internal state of Russia", presented to Emperor Alexander II in 1855. The current state of Russia is characterized by internal discord, covered up by shameless lies. The government and the "upper classes" are alien to the people, their mutual relations are not friendly, they do not trust each other: the government is constantly afraid of revolution, the people are inclined to see new oppression in every action of the government. The general conclusion of the author was: "To the king - the power of power, to the people - the power of opinion." The Russian people do not want to rule, they are looking for freedom not political, but moral, social. The true freedom of the people is possible only under a limited monarchy. Prominent representatives of the Westerners were K.D. Kavelin and B.N. Chicherin, who eventually evolved towards liberalism and became the ideological forerunners of the constitutional democrats of the early XNUMXth century.

66. MAIN DIRECTIONS OF THE WESTERN EUROPEAN POLITICAL AND JURIDICAL THOUGHT IN THE FIRST HALF OF THE XIX CENTURY

The socio-political life of Western Europe in the first half of the XNUMXth century was marked by the further establishment and strengthening of the bourgeois order in this region of the world, especially in such countries as England, France, Germany, Switzerland, Holland, etc. The most significant ideological currents that emerged at that time and declared themselves were self-determined through their attitude to this historical process. French bourgeois revolution of the late XNUMXth century. gave a powerful impetus to the development of capitalism in Europe. He had many opponents. The establishment of the bourgeois, capitalist way of life was met with hostility by the noble-aristocratic, feudal-monarchist circles, who were losing their former privileges and who wanted the restoration of the old, pre-bourgeois order. The complex of their ideas qualifies as conservatism. The capitalist order was fiercely condemned by representatives of a completely different social camp than the conservatives. The latter was made up of the proletarianizing masses of workers, the ruined small proprietors, etc. The capitalist system then plunged these strata into misery. Salvation was seen by them in the total rejection of the world of civilization, based on private property and the establishment of a community of property. This anti-capitalist position was expressed by socialism. The program of another ideological current, anarchism, looked peculiar. Not all of his supporters were enemies of the bourgeoisie and private property. However, they almost unanimously opposed the state in general (of any type and any form), seeing in it the main cause of all social evils. Accordingly, they rejected capitalist statehood, bourgeois legislation, etc. The capitalist system that was establishing itself in Western Europe found its ideology in liberalism. In the XNUMXth century he was a very influential political and intellectual current. His adherents were in different social groups. But its social base was primarily entrepreneurial (industrial and commercial) circles, part of the bureaucracy, freelancers, and university professors. The conceptual core of liberalism is formed by two fundamental theses. First: personal freedom, the freedom of each individual and private property are the highest social values. Second: the implementation of these values ensures not only the disclosure of all the creative potential of the individual and its well-being, but at the same time leads to the flourishing of society as a whole and its state organization. The peak of the spread of conservatism occurred in the first third of the last century. Unlike socialism and liberalism, conservatism did not have such a clearly defined and stable conceptual core. That is why the politico-juridical ideas of the conservative kind proper were not considered here. Thanks to their nomination and development, Joseph de Maistre (1753-1821) and Louis de Bonald (1754-1840) became famous in French political literature, Ludwig von Haller (1768-1854) and Adam Muller (1779-1829) became famous in German. On social science of the XIX century. (including the science of state and law) Kant's ideas about the need for a researcher to strive for strictly positive, fact-based knowledge, to identify patterns of the historical process, to study social institutions and structures had a certain influence (primarily in methodological terms).

67. ENGLISH LIBERALISM

Last third of the XNUMXth century - a time when England was rapidly turning, in terms of the main indicators of social development, into the leading capitalist power in the world. Many factors contributed to this circumstance, and many characteristic phenomena accompanied it. English political and legal thought in its own way described, explained and justified the major socio-historical changes taking place in the country. The theme of the beneficent role of private property, its protection and encouragement, the theme of individual activism, guarantees of the inviolability of the sphere of private life of people, etc., has almost become central in social science.

The conviction prevailed that the actions of the individual as a private owner are driven by both spontaneous impulses and a deliberate sober calculation to extract the maximum personal benefit from their actions. A significant contribution to the development of this kind of ideas was made by Jeremy Bentham (1748-1832). He was the founder of the theory of utilitarianism, which incorporated a number of social and philosophical ideas of Hobbes, Locke, Hume, and French materialists of the 18th century. (Helvetia, Holbach). Freedom and individual rights were for Bentham the true embodiments of evil, therefore he did not recognize and rejected them, and generally rejected the school of natural law and political and legal acts created under its influence. Bentham's sharply critical attitude towards the school of natural law was also expressed in his denial of the idea of distinguishing between right and law. The reason for this rejection of this idea is rather not so much theoretical as pragmatic and political. He also did not share the opinion that society and the state arose in history through the conclusion of an appropriate agreement between people. In matters of organizing state power, Bentham took a democratic position. He condemned the monarchy and hereditary aristocracy, and was a supporter of the republican structure of the state, in which the three main branches of government (legislative, executive and judicial) were to be separated.

England - the birthplace of European liberalism - gave in the XIX century. the world of many worthy representatives of it. But even among them, with its originality and power of influence on the ideological life of the era, on the subsequent fate of liberal democratic thought, John Stuart Mill (1806-1873). The views of this classic of liberalism on the state, power, law, law were set out by him in such works as “On Freedom”, “Representative Government”, “Fundamentals of Political Economy” (especially the fifth book of “Fundamentals” - “On the Influence of Government”). Having begun his scientific and literary activity as an adherent of Benthamian utilitarianism, Mill then moved away from him. He, for example, came to the conclusion that all morality cannot be based entirely only on the postulate of the personal economic benefit of the individual and on the belief that satisfying the selfish interest of each individual person will almost automatically lead to the well-being of everyone. In his opinion, the principle of achieving personal happiness can “work” if only it is inextricably, organically connected with another guiding idea: the idea of the need to harmonize interests, moreover, to harmonize not only the interests of individual individuals, but also social interests. Mill is characterized by an orientation towards constructing “moral”, and therefore (in his understanding), correct models of the political and legal structure of society. The highest manifestation of morality and virtue, according to Mill, is ideal nobility, which is expressed in asceticism for the sake of the happiness of others, in selfless service to society. All this can only be the lot of a free person. Freedom of the individual is the “commanding height” from which Mill considers his key political and legal problems.

68. FRENCH LIBERALISM

Anti-feudal ideology of the French bourgeoisie in the first half of the XNUMXth century. expressed by many talented political thinkers. Among them, the most significant are B. Constant и A. Tocqueville.

Most of the works on politics, power, state Benjamin Constant (1767-1830), whom researchers consider the spiritual father of liberalism on the European continent, wrote between 1810-1820. Then he collected them and compiled them into a “Course of Constitutional Politics,” which set out the liberal doctrine of the state in a convenient, systematic form. The core of Constant's political-theoretical constructions is the problem of individual freedom. For a modern European, this freedom is something different from the freedom that people had in the ancient world. For the ancient Greeks and Romans, it consisted in the possibility of collective exercise by citizens of supreme power, in the ability of each citizen to directly participate in the affairs of the state. The freedom of a modern European is personal independence, autonomy, security, the right to influence government. The direct, permanent participation of each individual in the performance of state functions is not one of the strictly mandatory elements of this type of freedom. The material and spiritual autonomy of a person, his reliable protection by law are in the first place for Constant even when he considers the problem of individual freedom in a practical political sense. The goals and structure of the state must be subordinated to these values. A modern state must be a constitutional monarchy in form. It is not by chance that preference is given to a constitutional-monarchical system. In the person of the constitutional monarch, the political community acquires, according to Constant, “neutral power.” It is outside the three “classical” powers (legislative, executive, judicial), independent of them and therefore capable (and obligated) to ensure their unity, cooperation, and normal activity.

The well-known compatriot and contemporary Constant Alexis de Tocqueville (1805-1859). The subject of his greatest interest was the theoretical and practical aspects of democracy, in which he saw the most significant phenomenon of the era. Democracy is interpreted broadly. She personifies the social system opposite to the feudal one and knows no boundaries between the upper and lower classes of society. But it is also a political form that embodies a given social order. The core of democracy is the principle of equality, which has inexorably triumphed in history. Freedom and equality, according to Tocqueville, are phenomena of different orders. The relationship between them is ambiguous. And people’s attitude towards them is also different. At all times, Tocqueville claims, people prefer equality to freedom. It comes easier to people and is perceived with affection by the overwhelming majority. For Tocqueville, the greatest social value of freedom is obvious. Only thanks to it does the individual have the opportunity to realize himself; it allows society to sustainably prosper and progress. Tocqueville is convinced that modern democracy is possible only with a union of equality and freedom. Equality taken to the extreme suppresses freedom and causes despotism. Despotic rule, in turn, makes equality meaningless. But even without equality as a fundamental principle of democracy, freedom is short-lived. The problem, according to Tocqueville, is, on the one hand, to get rid of everything that interferes with the establishment of a reasonable balance of equality and freedom acceptable for modern democracy. On the other hand, to develop political and legal institutions that ensure the creation and maintenance of such a balance.

69. GERMAN LIBERALISM

The liberal movement on German soil began in the first decades of the 1848th century. On the eve of the revolution of 1849-XNUMX. in Germany it reached a considerable height. Both in terms of scale and organization, and in terms of ideological and theoretical maturity. Early German liberalism - the one that was born and established in the pre-revolutionary period - was par excellence a "constitutional movement". Within its framework, various models of political and legal orders desirable for the German states were developed and proposed. German liberalism in the first half of the XNUMXth century. represented by Friedrich Dahlmann, Robert von Mol, Karl Rottek and Karl Welker, Julius Fröbel, and others. Their views and activities significantly influenced the political and spiritual climate of Germany at that time. All-European fame was gained primarily by the works of Wilhelm von Humboldt and Lorenz Stein, permeated with liberal ideas.

Wilhelm von Humboldt (1767-1835) along with I. Kant, whose work had a strong influence on him, stands at the origins of German liberalism. Humboldt's main political work, “The Experience of Establishing the Boundaries of the Activities of the State,” written back in 1792, was published only in 1851. The general position with which Humboldt approaches the state is the position of humanistic individualism. It is not so much the state itself that occupies it, but the person in relation to the state. The main task solved in the “Experience” is “to find the most favorable position for a person in the state.” Humboldt adheres to what social science began in the XNUMXth century. lines on the differentiation of society (“civil society”) and the state. The facets of this differentiation for him are the differences between:

1) a system of national institutions (organizations, unions, any other associations formed from below, by individuals themselves) and state institutions and services;

2) "natural and common law" and positive law created directly by the state;

3) "man" and "citizen". From his point of view, society is fundamentally more significant than the state, and a person is something much more than a citizen - a member of a political ("state") union. For the same reason, "natural and common law" should be the only basis for positive law, the guiding principle in the development and adoption of state laws. The purpose of the existence of the state as such is to serve society: "The true scope of the state's activities will be everything that it is able to do for the good of society." But behind the abstraction of "society" Humboldt seeks to see each individual constituting the society of the individual. Hence the thesis - "the state system is not an end in itself, it is only a means for the development of man."

Lorenz Stein (1815-1890) owns a number of fundamental studies on society, the state, law, and government. Of particular interest are such works by Stein as "The History of the Social Movement in France from 1789 to the Present Day" (the first book of this three-volume edition is "The Concept of Society"), "The Doctrine of Management", "The Present and Future of the Science of State and Law Germany". Stein's liberalism was clearly expressed in the fact that he put the question of the individual, his rights, his property at the forefront of his socio-political doctrine. The main motive driving the individual is seen by Stein in the desire for self-realization, the essence of which is the acquisition, processing, production and multiplication of goods. Every good produced by a person belongs to him, is identified with him and therefore becomes as inviolable as he himself. This inviolability of the good is the right. United through the right with the person in one inviolable whole good is the property.

70. POLITICAL AND LEGAL VIEWS OF THE IDEOLOGISTS OF SOCIALISM

In the first decades of the XNUMXth century, when the liberals sought to strengthen, improve and glorify the bourgeois order (the system of capitalist private property, freedom of enterprise, competition, etc.), thinkers appeared in Western Europe who subjected these orders to impartial criticism and developed projects for society, which (in their opinion) will be able to get rid of exploitation and oppression, to provide each individual with a decent existence. First of all, we are talking about the systems of views of A. Saint-Simon, C. Fourier and R. Owen.

views Henri de Saint-Simon (1760-1825) on the state and law were determined by his concept of historical progress. He believed that human society naturally develops in an ascending line. Moving from one stage to another, it strives forward to its "golden age". The theological stage, which covered the times of Antiquity and feudalism, is replaced by the metaphysical stage. After it, the positive stage will begin; a social system will be established that will make "the life of the people who make up the majority of society the happiest, providing them with the maximum means and opportunities for satisfying their most important needs." If at the first stage dominance in society belonged to priests and feudal lords, at the second - by lawyers and metaphysicians, then at the third it should go to scientists and industrialists. A. Saint-Simon suggested starting a radical transformation of the old system with partial reforms: eliminating the hereditary nobility, buying out land from owners who are not engaged in agriculture, alleviating the situation of the peasants, etc. The introduction of an industrialism system at a positive stage in the history will not require the destruction of traditional state- legal forms. The institution of the monarch will remain, the government (ministries) and representative institutions will remain. But all the fullness of secular power will be concentrated in the newly created parliament - the Council of Industrialists.

Leading English socialist Robert Owen (1771-1858) He spoke already during the period of the industrial revolution and the exacerbation of class conflicts inherent in capitalist society caused by it. The central link of his system of views is the doctrine of the character of a person. R. Owen proceeded from the fact that the human character is the result of the interaction of the natural organization of the individual and his environment. If the character, consciousness and destinies of people are shaped by the external environment, and such are capitalist relations, then they are responsible for the darkness and ignorance of the masses, the decline in morals, the dominance of the spirit of greed and hatred, and are responsible for human lives crippled by all sorts of vices. The main culprit of all social evils is private property. Condemning the socio-economic orders of his day, R. Owen at the same time realized that the progress of the productive forces taking place under capitalism, the growth of large-scale industry (the spread of the factory system), the rise and widespread use of scientific and technical knowledge give rise to "the need for a different and higher structure society". The transition to a new society will be helped by individuals and groups of people who have the necessary capital and are guided by good will. These people may be monarchs, ministers, archbishops, landowners, industrialists, wealthy philanthropists in general, as well as entire counties, parishes, associations of the middle classes, farmers, merchants, artisans, factory workers themselves. The utopianism of such an assumption is obvious.

71. THEORETICAL SOURCES OF THE MARXIST UNDERSTANDING OF STATE AND LAW

The genesis of the doctrine Marx and Engels on State and Law was prepared and stimulated by a combination of economic and socio-political events in Western European history in the first half of the XNUMXth century. The creators of Marxism set out their final judgments regarding the state of contemporary Western European society in the "Manifesto of the Communist Party" - the program of the Union of Communists. Capitalism, which has triumphed in this society, has reached, in their opinion, the peak, the limit of its development, and can no longer cope with those powerful means of production and exchange that have matured in the bosom of bourgeois relations. The latter began to clearly interfere with the growth of productive forces, turned into a brake on social progress. The bourgeoisie not only forged weapons that bring death, but also gave rise to people who will use these weapons against it - modern workers, proletarians. She herself is no longer capable of remaining the ruling class. Capitalism as a type of social organization has completely exhausted itself. The class struggle of the proletarians against the bourgeoisie is drawing to a close. The immediate practical goal of the proletarians, who are consolidating into an independent class, is the overthrow of the rule of the bourgeoisie, the conquest of political power. Such a summary assessment of the bourgeois system, the state of Western European society in the middle and second half of the XNUMXth century. Marx and Engels held firm throughout their subsequent work. Of course, certain adjustments, additions, etc. were made to this assessment from time to time. However, two points remained unshakable in her. Firstly, the conviction that at last a real science of society surpassing all other teachings has been created and a true knowledge of capitalism as such, capitalism as a socio-economic formation has been obtained. Secondly, capitalism, which existed at that time in the advanced bourgeois countries, is in the main ready for the socialist revolution and is almost on the eve of its accomplishment. Close in mind Marx and Engels had to study the "anatomy" and "physiology" of a state-organized society, which Rousseau did. Their interest was aroused by his views on democracy as the norm of the political existence of individuals united for joint life and activity in a single society. According to Rousseau, the core of democracy is the principle of popular sovereignty, the supremacy and sovereignty of the people in the state. The Marxist political and legal concept was formed not without the influence of the views of the prominent French historians of the Restoration era O. Thierry, O. Mine, F. Gizo and others. These scientists were able to take a realistic look at the facts of the close dependence of the state system, legal institutions on the material conditions of social life, on the class struggle that took place in history. They believed: political institutions, legal norms are created by society, are a reflection of the social system, primary in relation to them; the political and legal institutions generated by society then begin to influence social life themselves, to modify it. To a greater extent, the propositions on classes and the class struggle developed by the above-mentioned historians turned out to be consonant with the ideological ideas of Marx and Engels. Here are some of them. Society is deeply divided into classes that differ from each other in social, property, and legal characteristics. Each of the classes invariably strives to put in power the government it needs.

72. FATE OF THE STATE AND RIGHTS IN THE COMMUNIST FORMATION

In addition to the social-class and actually internal scientific reasons that prompted Marx and Engels to deal with the issue of the future of the state and law, there was another point - ideological, which required close attention to this issue. The "Manifesto of the Communist Party" expressively and unequivocally stated the idea: "When class differences disappear in the course of development and all production is concentrated in the hands of an association of individuals, then public power will lose its political character." Marx and Engels predict the inevitability of a change in the nature of public power in the future society (the loss of its features of political power). Marx suggests that with the complete victory of the working class (the elimination of private property relations and the elimination of social antagonisms from the life of society), the class rule of the proletariat will end. But the existence of statehood will not end at all after this. This will remain and will function. Its character, however, will change significantly: it will lose its former "political meaning." Although the existence of statehood does not cease after the complete victory of the proletariat, nevertheless, it also has a final frontier. Just as the state "appears only at a certain stage in the development of society, it will disappear again as soon as society reaches a stage that has not yet been reached," notes Marx. Continuing this course of Marx's thoughts, Engels formulates Marx's principled position and his own on the question of the origin and withering away of the state: "So, the state does not exist from eternity. There were societies that did without it, that had no idea about the state and state power. At a certain stage of economic development, which was necessarily connected with the division of society into classes, the state became a necessity because of this division. We are now rapidly approaching a stage in the development of production at which the existence of these classes has not only ceased to be a necessity, but has become a direct hindrance to production. Classes will disappear just as inevitably as they inevitably arose in the past. With the disappearance of classes, the state will inevitably disappear. A society that organizes production in a new way on the basis of a free and equal association of producers will send the entire state machine to where it will then be its proper place: to the museum of antiquities, next to the spinning wheel and with the bronze axe. Communism, Marx and Engels believed, would be a highly organized, harmonious and systematically developing "union of free people." Like no other system before it, it will need a unified and scientifically based management of the most important aspects of social life. The instrument of such leadership, the means of streamlining and optimizing this social structure will be the public authority, which will receive the proper material, organizational and technical implementation in the system of relevant institutions, connections and procedures. They condemn such a communist order, which proclaims sacrifice and asceticism as a virtue, which replaces the rational organization of social life with the establishment of control over every step of the members of society, which hides the central institutions of power from the eyes of the public, from the working people.

73. EUROPEAN POLITICAL AND LEGAL THOUGHT OF THE SECOND HALF OF THE XIX CENTURY

Second half of the XNUMXth century in Europe (primarily in Western Europe) is distinguished by a number of characteristic features. In many countries of the continent, the bourgeois order is firmly established. The capitalist market economy with its complex infrastructure is further developed. Institutions are being put into practice that ensure the inclusion of ever wider sections of the population in the political process. There is a gradual democratization of this process. The movement for the expansion of the political and social rights of the individual, for the establishment of universal suffrage, is gaining strength, and it is achieving certain successes. The proletariat enters the public arena as an independent organized force, creating its own trade unions, parties, the press and actively defending its own class interests. More and more clearly, the main line of ideological confrontation begins to take place not between the adherents of the old, feudal-monarchist regime and the supporters of the bourgeois system. Now it divides the camp of adherents of this system and supporters of socialist transformations. This, however, does not mean that there was complete unity in the political and legal views of those who in one way or another advocated the preservation of the status quo. On the contrary, the spread of political and legal ideas among them was very large: from liberal-democratic to elitist, authoritarian, etc. The ideological basis of such ideas was just as heterogeneous. XIX century inherited from the XNUMXth century the concept of the progressive movement of mankind. The idea of progress, i.e. the idea of a natural transition from lower forms of civilization to higher and more perfect ones was present in the general theoretical positions of many researchers of the state and law of that time. The Age of Enlightenment also passed on to its successor the idea of a rational structure of the world, the belief in the power of the human mind, capable of comprehending the secrets of natural and social existence. Of course, not every theorist of state and law spoke under the banner of rationalism, but there is no doubt that in the XNUMXth century. rationalistic attitudes as a whole are firmly established in social science. Influential intellectual movement in the XIX century. was positivism. It became a kind of reaction to the inability of the previously dominant speculative philosophical systems to solve the problems raised by the rapid development of the productive forces, technical knowledge, the sciences of nature and society. Its founders and their followers tried to discard “metaphysical” constructs (traditional philosophy, ideology, etc.) and study only purely empirical material, believing that only through “preconditionless” operation of “pure” facts alone can a genuine social science be built , including jurisprudence. In the second half of the XIX century. the current flowing from the natural sciences to the social ones intensified. The former leaders - the disciplines of the physical and mathematical cycle - gave way to biology. That is why a great influence on social thought was exerted by the evolutionary theory, which became dominant in virtually all natural science. The ideas of organicism, which makes it possible to analyze various social objects not according to the model of a machine, a stable mechanical unit, but as integral, changing and developing formations, have become attractive to social scientists. Panorama of intellectual life in the second half of the XNUMXth century.

74. NEO-KANTIAN DOCTRINE OF LAW. R. STAMMLER

The efforts, traditional for German political and legal thought, to build scientific knowledge of law, based on philosophy, were undertaken by Rudolf Stammler (1856-1938). Stammler's Peru owns a number of works of a theoretical and legal profile: "Economy and Law from the point of view of a materialistic understanding of history", "The Doctrine of Correct Law", "Theory of Jurisprudence". The philosophical basis for Stammler's ideas about law is neo-Kantianism in its version, which was developed by the so-called Marburg school (G. Cohen, P. Natorp and others). Adherents of this trend in philosophy believed that the subject of knowledge is identical to the concept of the subject, and that being itself is a set of purely conceptual relations. The purpose of philosophizing is creative work on the creation of intellectual objects of all kinds and, at the same time, reflection, analysis of such work. Stammler, who generally shared the philosophical and political tenets of the Marburg school of neo-Kantianism, criticized the materialist concept of history, social materialism (i.e. Marxism). He rejects the cornerstone Marxist thesis about the primacy of the economy, economic life and the secondary nature of law, political institutions, the thesis about the subordination of law to the economy. Marxist doctrine seems to Stammler unfinished and ill-conceived for two reasons. Firstly, because in Marxism there is no critical examination and evidence-based, detailed explanation of the key concepts used: society, economic phenomena, the social mode of production, etc. Secondly, because Marxism does not disclose what degree of necessity it recognizes behind the coming transformations of law; a simple insight into the expected course of development cannot, according to Stammler, replace the system of scientific arguments. The general concept of law proposed by Stammler looks somewhat complicated and vague: "The inviolable autocratic regulation of the social life of people." From a number of Strainler’s explanations we can conclude what is practically meant here. First, it is meant to delimit "legal" as "autocratic will" (the claim to dominance over individuals subject to the law, regardless of their consent or disagreement) from the norms of morality. Secondly, to distinguish between "right" and "arbitrariness" (actions of the legislator, contrary to the general principles of law). Thirdly, to single out as a decisive feature of the law its "inviolability", by which one must understand the desire of the one who prescribes the norm to be bound by it himself; as long as such dependence exists equally for the subordinate and for the one who established the norm, as long as it is equally obligatory for both of them, the right exists. Stammler differentiates law as a whole into fair and unfair. The idea of such a distinction is ultimately to prove: "There are no special legal provisions that would include an unconditional composition in their conditional content." In other words, there are no legal provisions that are once and for all only fair or exclusively unfair in all situations. Law itself, in its essence, is intrinsically characterized by the will to achieve an objectively just ordering of social life, it is intrinsically characterized by movement towards a social ideal. But it (volition) never finally stops at any one historical point. There is a constant change in content previously considered materially just, "and humanity is always destined to nurture a better and better understanding of what is just on certain issues." Thus, Stammler introduces the principle of development into the system of his legal views, the embodiment of which is the category of "natural law with changing content." Its spirit turned out to be consonant with what came in the XNUMXth century.

75. POLITICAL IDEAS OF H. SPENCER

Herbert Spencer (1820-1903) belongs to the number of talented self-taught people who did not receive a systematic education in their time and nevertheless managed to acquire extensive knowledge in various fields. Spencer was thoroughly interested in biology, psychology, ethnography, history. Spencer's starting point for assessing social structures and other parts of political aggregates was the position that society exists for the benefit of all members, and not its members exist for the benefit of society. Referring to the history of the emergence of the state and political institutions, Spencer argued that the initial political differentiation arises from family differentiation - when men become the ruling class in relation to women. At the same time, differentiation is also taking place in the class of men (domestic slavery), which leads to political differentiation as the number of enslaved and dependent persons increases as a result of military seizures and captivity. With the formation of a class of slave-prisoners, "a political division (differentiation) between ruling structures and subordinate structures begins, which continues to go through ever higher forms of social evolution." Along with the expansion of the practice of conquest, the class structure becomes more complicated - various estates arise, a special ruling layer is singled out, and thereby the political structure becomes more complicated. In the course of uniting efforts in the name of military goals, the role of "compulsory cooperation" increases, which leads to the loss of individuality among its participants (for example, in the military type of social organization, the individual turns out to be the property of the state). At this time, the preservation of social foundations becomes the most important goal, while the preservation of each member of society is a secondary goal. The status of hierarchical subordination is the most remarkable feature of military government: from the despot to the slave, everyone is the master of those below and the subordinates of those above in this hierarchy. At the same time, the regulation of behavior in such a society and under such a government is not only prohibitive, but also encouraging. It not only restrains, but also encourages, not only prohibits, but also prescribes certain behavior. Spencer considers the industrial (industrial) type of organization of society to be another, opposite system of organization and management. It is characterized by voluntary rather than forced cooperation, freedom of trade and trade, inviolability of private property and personal freedom, representative nature of political institutions, decentralization of power, and provision of ways to coordinate and satisfy various social interests. Industrial competition (“peaceful struggle for existence”) sets the tone for everything, taking place in an atmosphere of the abolition of class barriers, the rejection of the principle of inheritance when filling public posts. The sense of justice and mores of an industrial society is characterized by the prevalence of a sense of personal freedom and initiative, respect for the right of property and the personal freedom of others, a lesser degree of subordination to the authority of the authorities, including religious authorities, the disappearance of servility, blind patriotism and chauvinism, etc. In the movement from the military to the industrial type of society, Spencer saw a pattern of general socio-political evolution, which partly coincided in time with the process of historical movement from a highly hierarchical and military-unified feudal system to a society based on commodity exchange, division of labor and highly valued personal rights and freedoms of individuals. Subsequently, already in the XNUMXth century, these constructions and characteristics of Spencer were borrowed and built into the social concepts of "industrial society" (R.

76. POLITICAL AND LEGAL DOCTRINE F. NIETSCHE

Friedrich Wilhelm Nietzsche (1844-1900) - one of the significant figures in the history of philosophical and political-legal thought. Issues of politics, state and law are covered, in particular, in such his works as "The Greek State", "The Will to Power", "Thus Spoke Zarathustra", "Beyond Good and Evil", "The Origin of Morality", etc.

The state, law, legislation, politics are, according to Nietzsche’s concept, service tools, means and instruments of culture, which, in turn, is the manifestation, discovery and formation of a struggle of forces and wills, cosmic in its scale. The will to accumulate strength and increase power is interpreted by him as a specific property of all phenomena, including social and political-legal ones. He considered ideas about the progressive nature of development to be erroneous. Value, according to Nietzsche, is the highest amount of power that a person is able to acquire. Humanity is only a means, not an end. It is precisely the few great personalities (such as Caesar, Napoleon), despite the short duration of their existence and the non-transferability of their qualities by inheritance, that, according to Nietzsche, are the only meaning, purpose and justification of what is happening and the entire struggle of various wills for power. Nietzsche characterizes the entire socio-political history as a struggle between two wills to power - the will of the strong (higher species, aristocratic masters) and the will of the weak (the masses, slaves, crowds, herds). The aristocratic will to power, according to Nietzsche, is the instinct of ascent, the will to live; the slavish will to power is the instinct of decline, the will to death, to nothing. High culture is aristocratic, but the dominance of the “crowd” leads to the degeneration of culture, to decadence. Morality is a weapon of slaves against masters, moral judgments and institutions of the weak against the strong, a justification for the dominance of the herd over higher species. The history of mankind over the last few millennia (from the dominance of the ancient aristocracy to the present) is regarded by Nietzsche as a process of gradual degeneration of healthy life principles, as the eventual victory of the large mass of the weak and oppressed over the small aristocracy of the strong. Adhering to the global perspective of aristocratic aestheticism, he gives a fundamental preference to culture and genius over the state and politics - where such divergence and clash takes place, in his opinion. The goal of humanity, according to Nietzsche, is its most perfect specimens, the emergence of which is possible in an environment of high culture, but not in a perfect state and preoccupation with politics - the latter weaken humanity and prevent the emergence of genius. The genius, fighting for the preservation of his type, must prevent the establishment of a perfect state, which could ensure general well-being only at the cost of losing the violent character of life and producing sluggish personalities. “The state,” Nietzsche wrote, “is a wise organization for the mutual protection of individuals; if it is over-improved, then in the end the individual will be weakened and even destroyed by it, that is, the original purpose of the state will be radically destroyed.”

Nietzsche is an implacable opponent of the ideas of popular sovereignty, the implementation of which, according to him, leads to a shake-up of the foundations and the fall of the state, the elimination of the opposition between "private" and "public". Noting the tendency for the role of the state to fall and assuming in principle the disappearance of the state in a distant historical perspective, Nietzsche believed that "chaos will come least of all, but rather an even more expedient institution than the state will triumph over the state." At the same time, Nietzsche rejected actively contributing to the fall of the state and hoped that the state would endure for a long time to come.

77. POLITICAL AND LEGAL VIEWS OF RUSSIAN REFORMERS XIX - EARLY XX CENTURIES

A. Unkovsky was considered the leader of the radical wing of the noble reformers. "Liberal Party" in the late 50's. was represented by Kavelin and Chicherin, who considered their party surrounded on different sides by an "ignorant mass", and perceived themselves as "a part of enlightened and decent people who alone understand social tasks." They recognized the need to free the peasants, but "without shaking the entire social organism." At the same time, a special role was recognized for state power - its task was seen in the liberation of the peasants from above.

Alexey Mikhailovich Unkovsky (1828-1893/94), a graduate of the Tsarskoye Selo Lyceum and then the Faculty of Law of Moscow University, is known as the initiator and developer of the most radical project for solving the peasant question. The project was presented to Alexander II back in 1857 on behalf of the nobility of the Tver province. It substantiated the provision on the immediate and mandatory purchase by peasants of not only the estate, but also the field plot. In his analysis of the works of the Editorial Commissions, Unkovsky pursued the idea that the government project seeks to “pass unnoticed between the defenders of serfdom and people who want its complete destruction.” Mandatory repurchase of ground rent, wrote Unkovsky, is a completely legal measure, fair to both interested parties. Of course, in this case, the right of private property should be revered as sacred, but there are other rights that are “higher, more important and sacred than the right of property. Among such rights is the right to life and reasonably free activity. This right must always be inferior to the right of private property, and especially in cases where it serves not only private life, but also public life.”

Metropolitan of Moscow and Kolomna Filaret (Drozdov) lived a long life (17821867) and became a highly authoritative spokesman for the views of the Orthodox hierarchy on the state and law. Filaret did not support the desire of the European peoples for representative government, believing that the struggle for voting rights would never subside, since it had no clear criteria: it was "a struggle now for the expansion, then for the restriction of this right. The wrong expansion of the right of public election is followed by the wrong use of it". In the atmosphere of political life under Nicholas I and then Alexander II until the beginning of the reforms of the 60s. he saw a favorable contrast. After autocratic power, he considered the court to be the most important institution that ensured order and the attainment of the common good, and in this regard he expressed opinions and wishes that were radical for his time. For example, in 1813, when he was vicar of the St. Petersburg Metropolis, he spoke out in favor of electing judges. Judgment in his image is a fence of property and personal security, without judgment there would be no other property than the prey of a predator, and there would be no other security than "the security of an armed and awake warrior or the security of a strong oppressor, until he meets the strongest .. .". True, the law is set not only for the defendants, but also for the judge - "to instruct him and rule him," but it is essential that the law should be wise and just. "The arrangement of the court through the election of the most important guardians of public order and justice is one of the most important human affairs, the good and evil of many people, the improvement or disorganization of society, the perfection or imperfection of the union between the sovereign and the state depend a lot on it."

78. RADICAL POLITICAL AND LEGAL VIEWS IN RUSSIA IN THE LATE XIX - EARLY XX CENTURIES

60s marked by the emergence of new moments in the ideological content of social movements. This period is replete with radical programs and public actions. Historians (A.I. Volodin and B.M. Shakhmatov) call it the period of the formation of revolutionary utopian socialism on Russian soil, arising from the combination of Russian utopian (“peasant”) socialism and a mass revolutionary movement among the raznochintsy intelligentsia. Prominent representatives of Russian utopian socialism were A.I. Herzen and N.G. Chernyshevsky.

With name Mikhail Alexandrovich Bakunin (1814-1876) connected with the emergence and spread of the ideas of the so-called collectivist anarchism - one of the most widespread movements of ultra-revolutionary socialism. Bakunin most often used the natural law tradition in the interpretation of the rights of the individual or the duties of state officials, rather than a formal dogmatic analysis of existing state laws. All legal laws, in contrast to the laws of nature and the ordinary rules of community life, are, according to Bakunin, externally imposed, and therefore despotic. Political legislation is invariably hostile to freedom and contradicts the natural laws of human nature. Human freedom must be measured not with the freedom that is granted and measured by the laws of the state, but with the freedom that is a reflection of "humanity" and "human rights" in the minds of all free people who treat each other as brothers and as equals.

Pyotr Alekseevich Kropotkin (1842-1921) - the last of the galaxy of world-famous Russian propagandists of anarchism (along with Bakunin and L.N. Tolstoy) - belonged to an old princely family. He gained fame as a geographer and geologist (he studied Siberia, Finland and Sweden), as a deep researcher of one of the areas of evolutionary theory in biology, the author of monographic works in the field of history and theory of ethics, and then as the creator of a series of works on the theory and history of anarchism. He associated the historical development of the state with the emergence of landed property and the desire to keep it in the hands of one class, which, as a result, would become dominant. Landowners, priests, judges, warriors became socially interested in such an organization. All of them were determined to seize power. The state organization of ruling is in close relationship with justice and law. Anarchist criticism of the state organization of power was directed against the state as a form of bringing certain social groups to power, as an overbureaucratized center for managing local life from one center, as a form of "appropriation of many functions of public life in the hands of a few."

Pyotr Lavrovich Lavrov (1823-1900), director of the magazine "Forward", considered the main and most important task of the socialists in Russia to be closer to the people in order to "prepare a revolution that would bring about a better future." In contrast to the Bakuninists, Lavrov attached particular importance to the strict and intensive personal preparation of a socialist for useful activities, his ability to win the trust of the people, and the ability to provide assistance to the people (in explaining the people's needs and in preparing the people for independent and conscious activity).

79. POLITICAL AND LEGAL VIEWS OF THE RUSSIAN CONSERVATIVES IN THE END OF THE XIX - EARLY XX CENTURIES

The views of the late Slavophiles are marked by a generally patriotic cultural nationalism and an increased degree of distrust of the European political experience with its representative government, the idea of equality and respect for the rights and freedoms of man and citizen.

Nikolai Yakovlevich Danilevsky (1822-1885) in the book "Russia and Europe. A look at the cultural and political relations of the Slavic world to the German-Roman world" (1871) he developed the theory of cultural and historical types of human civilization. He believed that no special guarantees of political and civil rights are possible, except for those that the supreme power wants to provide to its people. Danilevsky ridiculed the idea of a "social Russian parliament", but unlike other neo-Slavophiles, he highly appreciated the importance of freedom of speech, considering it not a privilege, but a natural right.

Konstantin Nikolayevich Leontiev (1831-1891) was concerned about the danger of change for the identity and integrity of the national body, and above all - the dangers of the impending egalitarian-liberal progress. Leontyev shared the position of the author of “Russia and Europe” in the sense that all history consists of just a change of cultural types, and each of them “had its own purpose and left special indelible traces.” Discussing the topic of “Russian statehood,” Leontyev was inclined deduce its nature from the Byzantine and partly European heritage. Leontiev’s assessments of the situation in Russia and Europe were based on an analysis of trends and general patterns in the life of state organisms, which they discovered in the course of social history. At the beginning of the development of the state, the aristocratic principle manifests itself most strongly, in the middle life of the state organism, a tendency towards individual power appears and only “in old age and death does the democratic, egalitarian and liberal principle reign.” In Russian history - “Great Russian life and state life” - he saw the deep penetration of Byzantineism, i.e. the unity of a strong state with church.

Among the great Russian writers who left a noticeable mark on the history of social and political thought, a significant place is occupied by F. M. Dostoevsky (1821-1881). He owns the words: “We Russians have two homelands: our Rus' and Europe” (in a note on the death of George Sand). Later, Dostoevsky significantly changed this opinion, especially after a trip to Europe, and began to agree with Eve. Aksakov in his perception of Europe as a “cemetery”, recognizing it not only as “rotting”, but already “dead” - of course, for a “higher view”. However, his denial did not seem final - he retained faith in the possibility of “the resurrection of all Europe” thanks to Russia (in a letter to Strakhov, 1869). Dostoevsky raised and illuminated the question of the relationship between the material and spiritual needs of man in the process of radical social change, and the contradiction between “bread and freedom.” Russian religious and philosophical thought represented by Vl. Solovyov, F. Dostoevsky, K. Leontyev, and later S. Bulgakov and N. Berdyaev made a very original attempt to synthesize all their contemporary ideas about the role of Russia in the world-historical process and about the peculiarities of the assimilation of the values of European culture. The implementation of this plan in practice is nevertheless marked by the stamp of one-sidedness: in Dostoevsky due to the predominance of soil orientations, in Solovyov due to the utopian nature of his plans, in Berdyaev due to the “deep antinomy” discovered by him and greatly exaggerated in its influence in Russian life and the Russian spirit.

80. POLITICAL AND LEGAL VIEWS OF V.S. SOLOVIEV

Vladimir Sergeevich Solovyov (1853-1900) left a noticeable mark in the discussion of many topical issues of his time - law and morality, the Christian state, human rights, as well as attitudes towards socialism, Slavophilism, Old Believers, the revolution, the fate of Russia.

Vl. Solovyov eventually became perhaps the most authoritative representative of Russian philosophy, including the philosophy of law, who did a lot to substantiate the idea that law, legal convictions are absolutely necessary for moral progress. At the same time, he sharply dissociated himself from Slavophile idealism, based on "an ugly mixture of fantastic perfections with bad reality" and from the moralistic radicalism of L. Tolstoy, flawed primarily by the total denial of law. Being a patriot, at the same time he came to the conviction of the need to overcome national egoism and messianism. Among the positive social forms of life in Western Europe, he attributed the rule of law, although for him it was not the final embodiment of human solidarity, but only a step towards the highest form of communication. In this matter, he clearly departed from the Slavophiles, whose views he initially shared. Fruitful and promising were his discussions of social Christianity and Christian politics. Here he actually continued the development of the liberal doctrine of the Westerners. Solovyov believed that true Christianity should be public, that together with individual soul salvation, it requires social activity, social reforms. This characteristic formed the main initial idea of his moral doctrine and moral philosophy. Political organization in Solovyov's view is primarily a natural-human good, just as necessary for our life as our physical organism. Here, the Christian state and Christian politics are called upon to have special significance. There is, emphasizes the philosopher, the moral necessity of the state. In addition to the general and above the traditional protective task that every state provides, the Christian state also has a progressive task - to improve the conditions of this existence, contributing to "the free development of all human forces, which should become bearers of the coming Kingdom of God."

The rule of true progress consists in the fact that the state should constrain the inner world of a person as little as possible, leaving it to the free spiritual action of the church, and at the same time, as accurately and widely as possible, provide external conditions "for a worthy existence and improvement of people."

Another important aspect of political organization and life is the nature of the relationship between the state and the church. Here, Solovyov traces the contours of a concept that would later be called the concept of a welfare state. It is the state that, according to the philosopher, should become the main guarantor in ensuring the right of every person to a worthy existence. The normal connection between church and state finds its expression in the "permanent agreement of their highest representatives - the primate and the king." Next to these bearers of unconditional authority and unconditional power, there must be in society the bearer of unconditional freedom - a person. This freedom cannot belong to the crowd, it cannot be an "attribute of democracy" - a person must "deserve true freedom through inner achievement."

Solovyov's legal understanding had a noticeable influence on the legal views of Novgorodtsev, Trubetskoy, Bulgakov, and Berdyaev.

81. POLITICAL AND LEGAL VIEWS OF RUSSIAN PHILOSOPHERS IN THE FIRST HALF OF THE XX CENTURY

By the beginning of the XX century. all long-standing conflicts on political and ideological grounds - the incompleteness of the agrarian reform and the transition to constitutionalism, the strengthening of the positions of Russian Marxism and the new upsurge of religious and moral quests and discussions - received a new continuation and interpretation.

Among the revolutionary radicals, domestic Marxists gained a certain prestige, pushing the adherents of the ideals of the Narodniks of the 70s. and neo-populists of the beginning of the century (Socialist-Revolutionaries). The father of Russian Marxism is considered G.V. Plekhanov. Marxism became known in Russia in a populist coloring, then it became a movement among the democratic intelligentsia and urban workers. For Plekhanov, Russia's passage through the phase of capitalist development included not only the phase of full (bourgeois) capitalist development of the productive forces, but also the development of the corresponding superstructure (in particular, in the form of a constitution and parliamentary government). In this regard, in a dispute with the populists, he defended “the long and difficult capitalist path of development.” He saw the great mission of the working class in the fact that it was the working class that should complete the work begun by Peter - the Westernization of Russia.

Evgeny Nikolaevich Trubetskoy (1863-1920) He is known for his fundamental developments in the history of religious philosophy and research on the problems of the philosophy of law. He defined law as external freedom granted and limited by the norm. Definitions of law, in which the concepts of "power", "state" or "coercion" appear, that is, the understanding of law as organized coercion, have the drawback that any state or power is itself conditioned by law. They do not take into account those varieties of law that exist regardless of their recognition or non-recognition by one state or another, such as church law, international law, or some legal customs from the category preceding the emergence of the state. It is necessary to distinguish two elements in morality: the eternal law of goodness, which should determine the ultimate goal of our activity; a number of mobile and changeable specific tasks, goals, which are determined, on the one hand, by the eternal requirements of goodness, and, on the other hand, by the changing features of that particular environment where we must do good. Trubetskoy's approach contains the idea of harmonizing positive and natural law, and the latter "sounds like a call for improvement" and plays the role of a driving force in history. The idea of natural law gives man the strength to rise above his historical milieu and saves him from slavish worship of the existing.

Pavel Ivanovich Novgorodtsev (1866-1924) established himself as a brilliant historian and philosopher of law. His collections Problems of Idealism (1902) and From the Deep (1918) became a major event in the spiritual life of Russian society. The most significant work was "Introduction to the Philosophy of Law". The first part of it included the works "Moral Idealism in the Philosophy of Law" and "State and Law" (1907), which justified the need to revive the philosophy of natural law. The second part was the work "The Crisis of Modern Legal Consciousness" (1909), which reviews the crisis tendencies in the use of the ideals and values of the Age of Enlightenment, including the values of the rule of law. The difficulty of the latter task lies in the fact that the state assumes "the noble mission of public service, meets the need for reforms that are only partially feasible immediately," and that, generally speaking, they are "incomprehensible in their further development and complication."

82. LAWYERS OF THE RUSSIAN ABROAD

Interested researchers of the initial experience of Soviet Russia in a comparative historical perspective have become jurists of the Russian diaspora. It was a critical and analytical work that was carried out in the name of the "future" Russia, in foreign educational and scientific centers. In the early 20s. Harbin, Prague, large university cities of Yugoslavia became the centers for collecting professorial and teaching staff from Russia. A large group of jurists, philosophers and publicists appeared in 1922 in Berlin, delivered to Germany on the famous "philosophers steamer". In 1925, two volumes of a detailed work entitled "The Law of Soviet Russia" were published in Prague. The legal scholars of the Russian diaspora turned out to be the most prepared for the comparative coverage of the Soviet experience. Here N.A. Berdyaev, P.A. Sorokin, P.B. Struve, G.K. Gins, N.S. Timashev, S.L. Frank and others S.I. Hessen, scientific secretary of the Berlin Russian Scientific Center, became the author of the fundamental study "The Problem of Legal Socialism". In the 40s. he was invited to participate in the development of the philosophical foundations of the Universal Declaration of Human Rights (adopted in 1948) together with J. Maritain, Mahatma Gandhi and other major philosophers.

Among the figures of the Russian diaspora, a special place is occupied by Pyotr Berngardovich Struve (18701944-XNUMX). In an article from the collection "Milestones" and in a collection of his own articles "Patriotics", he developed ideas about the special cultural role of the intelligentsia, its interaction with the state, as well as the role of statehood in the formation of a new political and cultural consciousness of the Russian people. The uniqueness of the political reality of Russia after the Manifesto of October 17 and the creation of the State Duma was, according to Struve, that “the constitution exists in law only in the law and is absent in the legal consciousness of the rulers; the constitution is absent in life, in the political air that the average person breathes inside country, and it is undoubtedly present in the political air that, as a member of the international family, the entire state breathes." At the same time, dissatisfaction with autocratic absolutism grew to such an extent that, according to Struve, constitutionalism became, in fact, a popular idea.

Pitirim Aleksandrovich Sorokin (18891968) published about 40 books and 1000 articles in the main languages of Europe and Asia. His main works are “Modern Sociological Theories” (1928) and “Social and Cultural Dynamics” (4 volumes 19371941-1937). From the historical experience of different eras and peoples, Sorokin deduces “the historical trend of progressive speed of evolution and the gradual fall of sanctions, curved punishments and rewards (crimes and exploits).” Sorokin notes that “criminal punitive phenomena studied by the dogmatics of criminal law do not cover the entire class of homogeneous phenomena and deal only with a small part of the whole class. And because of this, a sociologist can and should not limit himself to the sphere of officially positive crimes and punishments (feats and awards) studied by criminal law (or the law of awards, which has an equal basis for existence), and can catch its “fish” outside this area, in the broader seas of social reality.” In the long-standing dispute between legal positivists and legal philosophers about the relationship between law and morality, Sorokin firmly sided with the latter. In the second volume of “Social and Cultural Dynamics” (XNUMX), entirely devoted to “fluctuations of systems of truth, ethics and law,” law in general and criminal law in particular are characterized by him as the best exponents of changes occurring in morals and ethno-legal mentality in their everyday routine manifestation.

83. POLITICAL AND LEGAL IDEOLOGY OF BOLSHEVISM

From the 70s. of the last century, the ideas of K. Marx began to spread in Russia. Their rooting on Russian soil is associated primarily with the activities of G.V. Plekhanov and the Emancipation of Labor group led by him (founded in 1883). The picture of socio-economic relations that were taking shape at that time quite clearly showed that Russia was irrevocably embarking on the path of capitalist development, with all the ensuing consequences. The adherents of Marxism in Russia concentrated their main efforts mainly on comprehending this fact, which was a turning point for the future destinies of the country. Their goal was to reveal the state of the post-reform Russian society, the prospects for its evolution from a historical-materialistic standpoint. They wanted to equip the Russian proletariat, which was emerging at that time, with an understanding of what it really is, what its place and role in socio-political life is, what it should strive for, what its social ideal is, what tactics and strategy it should use in the struggle against the ruling classes, against the existing state system. Russian Marxists were also united by common tasks, which they in the 80-90s. 1898th century tried to decide: the adaptation of the ideas of Marxism to the specific conditions of Russia, the propaganda and dissemination of these ideas. It united the work of gathering the proletarians and other radical people under the banner of Marxist socialism, the work of developing the revolutionary movement and giving it an organized character. In 1903, the First Congress of the Russian Social Democratic Labor Party officially proclaimed the creation of an all-Russian Marxist party. And just five years later, in 1903, at the Second Congress of the RSDLP, a split occurred in the Russian Social Democracy, which on the whole continued to stand on the platform of Marxism. Two distinct and subsequently divergent currents formed. One is Bolshevik. It was headed by V.I. Lenin. The other is Menshevik. "Bolshevism, - according to V.I. Lenin, - has existed as a current of political thought and as a political party since XNUMX." The most significant and typical exponents of the ideology of Bolshevism were V.I. Lenin, N.I. Bukharin, I.V. Stalin. Features of the ideology of Menshevism are vividly depicted in the works of G.V. Plekhanov, L. Martov and a number of other Menshevik figures. History was pleased to dispose in such a way that both in pre-revolutionary times and in the post-revolutionary period, the theoreticians of Bolshevism in the sphere of political and legal ideas were more active than the Mensheviks. Russian Marxism, as far as power, the state was concerned, spoke to a very noticeable degree with Bolshevik intonations.

At one time, Bolshevism and Leninism were defined as "Marxism of the XNUMXth century." Such a definition is quite fair, at least in relation to the interpretation of V.I. Lenin - the creator of Bolshevism - and his supporters of the fundamental Marxo-Engels provisions on power and the state. The provisions are known: the class nature of the state, the state as the official political and organizational form of the dictatorship of the ruling class, the inferiority of bourgeois democracy, the demolition of the bourgeois state in the course of the proletarian (socialist) revolution, the dictatorship of the proletariat, the withering away of the state, etc.

Bolshevik ideologists (Lenin and others) were inspired by these provisions and remained in their semantic space. Even when they expanded and updated their traditional (for classical Marxism) series. A typical example of this is Lenin's conception of the place and role of the Communist Party in the general system of the dictatorship of the proletariat. We must give credit to the Bolshevik thought. She was uninhibited, quickly reacted to the emerging political situation, changed, evolved.

84. ANALYTICAL LAW IN THE XX CENTURY

Modern analytical jurisprudence is a modification of the latest legal positivism, however, in its methodological and conceptual characteristics, it goes back to the works of J. Austin. The tasks of dogmatic jurisprudence are well known and do not require detailed justifications, since they have always been determined by the needs of everyday life and were closely related to legal practice. It is this approach that is most characteristic of the perception of law as a certain set of norms, as an ordered system of laws and branches of law. At the same time, the law is perceived as a verbal expression of the thought of the legislator. The totality of laws has its own internal logical connection and its own more or less perfect system of subordination and distribution. It is clear that such a system of laws cannot be consistently logical and reasonable, therefore the task of lawyers and science is to help rid the system of contradictions and gaps and take care of a more perfect verbal and semantic content of legal texts, since the most elementary legal practice requires understanding and interpretation of laws. The dogmatic understanding of law is characterized by the formula "law is the command of the sovereign" from John Austin's Lectures on Jurisprudence, or the Philosophy of Positive Law (mid-XNUMXth century). Moreover, according to Austin's concept, the sovereign cannot be responsible to positive law.

In the XX century. these ideas were picked up and partly reinterpreted in the works of the Englishman Herbert Hart. The latter considers law as a formal-logical system of "primary" to "secondary" rules, ascending to the so-called highest norm of recognition (Concept of Law, 1961). Primary rules are such legislative regulations that were made by a sovereign body (ie, parliament) and as a result of this circumstance certain duties, obligations and powers arose. Secondary rules consist of three varieties - the rules of recognition, modification and adjudication. The latter variety is essentially rules about rules, i.e., rules that judges, civil servants, government ministers, and others must follow in the process of applying or interpreting the law. Amendment rules means the agreed rules provided for in case of necessary changes in the current law. Hart's concept is already significantly at odds with the views of J. Austin, and this is due not only to the fact that Hart lived and worked in conditions of the predominance of pluralistic democracy, in the new conditions of opposition between liberal and conservative ideas. Hart, unlike Austin, made a number of concessions to the natural law tradition and synthesized in his concept some elements of Kelsen's normativism and Austin's analytical positivism. Hart is closest to Austin on the question of interpreting the relationship between law and morality.

The data of modern social sciences, including jurisprudence, proceed from the fact that the behavior of people is governed partly by custom, partly by privilege, and partly by certain defined and shared values. In addition, members of the community may be influenced by religious morality, including the doctrines and teachings of the church, as well as ethical principles (professional, primarily medical ethics, business, etc.). All of these varieties can and often are reflected in the legal system. Hart's position boils down to this: in all communities there is a partial interpenetration in content between legal and moral obligation; however, the attributes of legal rules are more specific and are surrounded by a barrier of more detailed qualifications than other comparable rules (i.e., moral rules).

85. PRAGMATIC POSITIVISM (XX C.)

A variety of modern legal positivism should be considered pragmatic positivism in law (American and Scandinavian schools of "real law"). If analytical jurisprudence with its formalism and dogmatism was nicknamed "the jurisprudence of concepts" (R. Iering), then the real school in jurisprudence can be called by analogy "the jurisprudence of developing and making decisions."

Realists in jurisprudence were perceived as real troublemakers of academic peace when, fully armed with the methods of modern psychology and sociology, they began to fix attention on what the courts and representatives of the legal profession actually do. The most famous in this regard was the book by Jerome Frank "Law and Modern Reason" (1930), which, according to the review of the member of the US Supreme Court F. Frankfurter, did not so much add to the existing fund of scientific knowledge, but called for a radical revision of what is in our time appears before us as knowledge or as truth.

The book, in particular, forced to reconsider the prevailing ideas about law, since D. Frank challenged the so-called conventional judgments (conditional propositions, legal fictions) and questioned "how we think and what we think about law." At the same time, the author relied on the experience and judgments of legal practitioners. So, he found himself an ally in the person of the judge and legal theorist O. Holmes, who argued: "General propositions (assumptions) do not solve specific cases."

Speaking about the features of the new legal understanding, Frank focused on the fact that the law is in its reality in the form of a special judicial decision (in the form of real doing, and not just speaking). This solution can only be predicted or unified to a small extent; this decision is also a process by which such a decision is worked out; essential to the new approach to law was the discussion of the extent to which the judicial process can and should be applied in the interests of ensuring justice in relation to fellow citizens.

In the preface to the 6th edition of the work (1949), Frank proclaimed that this set of positions in the interpretation of law is not without flaws due to the fact that the speech is reduced to a discussion of the "relevance of past decisions." Another "obvious blunder" Frank considered the phrase "legal realism", which was used to describe the work of the court (the intention was to look at the work of the court through the eyes of not a priest-lawyer, but a "realist" lawyer, an "experimental" lawyer, etc. ).

The realists were sharply criticized by all varieties of schools of the traditional approach - right and left, who saw the most vulnerable place in the concept of realists in their neglect of the moment of normative certainty in law. In response, Frank objected, arguing that, to a large extent, court decisions are still unpredictable until the moment the case is accepted for proceedings or until it begins to be heard in court.

There is no specific reference to natural law in Frank's work, but there is a general statement about its relevance. “I do not understand how any decent person today can refuse to accept as the basis of modern civilization those fundamental principles of natural law that relate to human behavior and which were proclaimed by Thomas Aquinas. Among them are the primacy of the pursuit of the common good, non-injury to others, retribution for everyone yours and the secondary nature of such principles as “thou shalt not kill,” “thou shalt not steal,” and “return what was entrusted to you.”

86. POLITICAL AND LEGAL IDEAS OF SOLIDARISM AND INSTITUTIONALISM

The political thought of France at the beginning of the century focused on two main directions related to the interpretation of traditional conservative and liberal teachings and on the interpretation of socialism that was attracting more and more attention - stateless socialism (traditions of anarchism), statist socialism (Marxism and Soviet experience) and reformist socialism (L. Blum ), revisionist and socialism "beyond Marxism" (this was the title of the work of 1927 by the authoritative theorist of this trend, Henri Maine). In the mid 30s. the influence of the experience of national totalitarianism and the experience of Soviet party-state socialism becomes noticeable.

Creation Leona Duguit (1859-1928), legal theorist, constitutionalist, dean of the Faculty of Law in Bordeaux, falls on the period when the ideas of natural law (legal naturalism) were revived in European countries. The central and unifying idea for Dugis is an idea borrowed from the field of positivist social philosophy. This became the concept of solidarity, at the origins of which is O. Comte. It was the introduction of this idea into the discussion of the nature of public power, public and private law that led Dugis to reformulate the subject of public law and human rights, as well as to new reinterpretations of the concepts of “social class”, “individual law”, “separation of powers”, etc. In his justification for a new system of collective rights and individual rights, Duguis refuses to see in modern societies only endless conflicts of appetites, clashes of brute forces, or the existence of irreconcilable hostility between the capitalist and working classes, which can end “only in the collapse of one of them.” The classes of modern society appear in Duguis's image as a collection of individuals between whom there is a “particularly close mutual dependence” (that is, a particularly close solidarity), since they perform the same work in the social division of labor. In addition to social solidarity, people are united and integrated into new communities by those rules of behavior that are set not by the rights of individuals or groups (Duguy believes them to be illusory and simply non-existent), but by a social norm. Such discipline and unification occurs for the simple reason that all people are social beings, that any social act that violates a social norm will certainly cause a “social reaction,” etc. Institutionalism grew on the basis of the recognition and peculiar interpretation of the fact that those existing in In every society, collectives (social communities, institutions), such as the family, members of the same profession, voluntary associations, as well as groups organized in the name of satisfying mental and other needs, should be perceived as integrative institutions, i.e., ensuring the cohesion of society into a nation-state . At the same time, the integrative role of such collectives is fulfilled by them together with the performance of more private roles associated with such service that is beneficial to themselves.

The theory of institutionalism was most successfully developed by Maurice Ormou (1859-1929), who interpreted the eternal problem of the opposition of interests of the individual and the state in the spirit of Christian collectivism of its first centuries, but did this with some innovations due to the modern socio-historical situation. The theory of institution, understood as an establishment, an establishment, or a certain collectivity, abandoned the use of contract theory (the conceptual core of liberal theory) and the command-administrative legality of socialists and put forward a number of fundamentally new provisions, which then received very wide populist use.

87. SOCIOLOGICAL LAW

This trend took shape as an independent discipline in connection with the need for a purposeful study and use of law as a tool for regulation and social control. This quality of law reveals itself at the very first stages of lawmaking (customary law, judicial law), as well as at all other stages of law-fixing and law enforcement activities. In this area of analysis and generalizations, the concepts of solidarism in law (O. Comte, E. Durkheim, L. Duguit), "free judicial discretion" by E. Ehrlich, social engineering in law (sociological jurisprudence of R. Pound), legal institutionalism (M. Oriou), as well as partly the psychological concept of law.

The sociological methodology of O. Comte entered jurisprudence only partially, not so much with the doctrine of the stages of progress or static and dynamic approaches to the study of social facts, but with the ideas of solidarism and the idea of the special practicality of law in containing or preventing social disagreements and conflicts.

Sociological jurisprudence is characterized by an emphasis not on what law is, but on how law operates. In this regard, the ancient distinction between the word of the living and the word of the dead turned out to be appropriate, which, being introduced into legal life and legal communication, made it possible to immediately distinguish the laws that "speak" from those laws that "do not speak", or, in another editions, to distinguish "law in life" from "law in books".

In the 30s. on the basis of the tradition of institutional legal pluralism, the concept of "social law" was formulated, the author of which was G. Gurvich (he worked as a teacher first at Petrograd, then Tübingen and Paris universities). Gurvich considered social legislation to be the embodiment of social law (the term itself was proposed in the 60s of the XNUMXth century by O. Girke). Social law in the later interpretations of Gurvich is a law fixed in the highest forms of social interaction between people, it is a "social law" that promotes objective integration in interpersonal relationships. Unlike individualistic law, it is based on partnership, and therefore it is a right aimed at mutual assistance, at solving common problems, at establishing peace, while individualistic law in the past and present is the right of war, conflict, disunity. Since social law is based on trust, it cannot be established from outside: it acts as if from within the given social environment, and in this sense it is an autonomous right. Its parameters are set not by the "pure norm" of the normativists, not by the subjective representations of persons and not by an objectified fact, but by "direct legal experience", which is recorded in collective documents.

Sociological jurisprudence was most widespread in the United States, where it coexisted and competed with analytical jurisprudence and natural law. Roscoe Pound, the head of this school, began to develop new problems as early as the first quarter of the century, and at the end of his career he managed to bring his developments together in the 5-volume "Jurisprudence" (1959). The essence of the new approach in the sociology of law was characterized by Pound himself as an "instrumental pragmatic approach" to the study of law, and law itself began to be perceived mainly as an "instrument of social control." Since the matter of control is connected in one way or another with the regulation and coordination of the behavior and social interaction of law-abiding citizens, the most appropriate name for jurisprudence itself has become the name "legal social engineering", the authorship of which is also attributed to Pound.

88. REVIVED NATURAL LAW

The distinction between natural law and artificial law, drawn by ancient Greek thought, was then supported by many authors of subsequent eras. In the XX century. a new approach to this topic was developed by neo-Kantians (R. Stammler and others), who declared the beginning of justice to be an absolute natural right. This beginning began to be perceived as a source and scale in assessing the historical movement of law towards an unattainable ideal. The interpretation of law, thus, began to include in its subject matter the inherent (implicit) norm requirement of justice and the appropriate adaptation of law to the values of the existing society. This is how the concept of natural law with a historically changing content arose. Modern English jurist Lon Fuller believes that a legal norm must contain an intelligible goal and indicate the means of achieving it. In this sense, each rule of law is substantive (has an essential content, carries the meaning of due and, thus, is a value). At the same time, every norm is instrumental; in this dimension it determines the means to achieve the goal. In view of what has been said, the entire legal system is also value-laden. Clarifying his position, Fuller introduces a distinction between implicit (implied) and explicit (external, formalized, done) law. Implicit law is customs and similar types of normative ordering of human communication, which are often devoid of verbal and symbolic designation and fixation. A right made is outwardly expressed precise rules contained in the norms and requirements of a treaty, statute, etc. Both explicit and implicit law are purposeful law, since they combine both what is and what is due. Unlike positivism, which declares almost any order of sovereign power to be the right, and unlike normativism, with its hierarchy of norms and the apex norm, and sociology, with its perception of the rule of law as a prediction of the possible behavior of the court, Fuller focuses on goal-setting in law, on the means of its implementations, which are also embedded in law, which gives law and the entire legal system the property of a value system. Fuller fixes his continuity with the natural law tradition of ancient authors in the thesis that law is rationality, manifesting itself in human relations. Fuller does not oppose positive law and natural law, but only right and wrong. A slightly different characterization of morality in law is given by Ronald Dworkin, author of Taking Rights Seriously (1972). Positive law must be evaluated not only from an instrumental point of view, but also from a moral point of view. Fundamental subjective rights form, in his opinion, those principles and criteria that should be taken as the basis of the moral dimension of law from the point of view of justice. The defining principle is the right to equality, in other words, "the right to equal respect and treatment". In the last third of the XX century. new interpretations of the natural law tradition were made by J. Rawls ("The Theory of Justice", 1972) and J. Finnis (Natural Law and Natural Law, 1980). J. Rawls bases his theory of justice on the Aristotelian concept of distributive justice, taken in a somewhat simplified form (the goods existing in a society should be distributed on the basis of the mutual demands of people and on the basis of the greatest possible equality). Rawls uses the construction-concept of "primary goods" that are subject to distribution. Among them, he includes freedom, equal opportunities, a certain level of material prosperity.

89. INTEGRATIVE LAW

The ongoing ideological confrontation and new divisions between positivist legal analysis and natural law analysis are accompanied today, as in past historical eras, by some mutual concessions and frequent attempts in one form or another to bring together dissimilar methodological positions and attitudes. Similar attempts were made within the framework of synthesizing (integrative) jurisprudence (Vinogradov, Yashchenko, Hall).

At the turn of the XIX-XX centuries. sociological philosophical and moral criticism of positivist dogmatic jurisprudence found a solution on an abstract, purely theoretical level in an effort to develop a synthetic theory of law (A.S. Yashchenko, P.G. Vinogradov, etc.). Even in the works of Chicherin, it was shown that history, dogma and the politics of law are three equally necessary directions in jurisprudence and state studies. A new confirmation of this was made in the fundamental work of A.S. Yashchenko "The Theory of Federalism. An Experience of the Synthetic Theory of the State", where, along with the original interpretation of confederal and federal political unions with their polyarchic and dualistic principles, the idea that the synthetic nature of legal (and political ) phenomena is especially pronounced in the federal political organizations. Approach to the study of law P.G. Vinogradov (1854-1925) called it synthetic, opposing it and separating it from the analytical method of J. Austin and his followers. The dangers of the analytical method are related to the fact that abstract concepts and terms are often perceived by analytic lawyers as if the question of these terms and their formal classifications is the essence of all jurisprudence. Ultimately, a special "world of concepts" is created, in which there are constant updates, criticism, protection and destruction of abstract structures.

As conceived by the American philosopher of law Jerome Hall, the author of the term "integrative jurisprudence", the natural law tradition can be updated today by combining it with the axiological (value) approach in law. At the same time, values should be considered as an indispensable attribute of a legal norm, and norms should be perceived as “protected value judgments”. The traditional natural law theory has little interest in the development of basic legal concepts, which in fact should form the initial basis of any legal theory. This section is best developed, according to Hall, in Kelsen's normativism. Taking into account the new role of the value principle in jurisprudence, integrative jurisprudence can also be called legal axiology. Values in law are what in the rule of law, like a mentor, "shapes mental states and external behavior." Exceptionally fruitful in this regard are, in his opinion, the definition of law as an ethical category in its essence, given at the time by Plato and Aristotle ("Studies in jurisprudence and criminal theory", 1958).

Today there is a situation where law is increasingly perceived from the standpoint of political or moral pragmatism. In this situation, a special role in the matter of renewal and integration falls to the lot of historical jurisprudence.

90. THE THEORY OF ELITES, BUREAUCRACY AND TECHNOCRACY

In the second half of the XIX century. in connection with the further centralization and bureaucratization of political life, a period of critical reassessment of the experience of representative government and liberal democratic values began, which was reflected in the theory of elites Wilfredo Pareto (18481923) and in the concept of political class Gaetano Mosca (1858-1941). At the beginning of the 20th century. the elitist approach to the study of politics was supplemented by the study of the influence of so-called interest groups (A. Bentley) and a new look at the ordering role of bureaucracy in the exercise of power in society and the state (M. Weber). A special type of social group analysis of politics was the concepts of technocracy and technodemocracy (D. Bell, M. Duverger, etc.)

The first draft of the theory of the political class was the work of the 26-year-old Italian jurist G. Mosca "The Theory of Government and Parliamentary Government" (1884). A more detailed version of the justification of this concept was then presented in his work "Fundamentals of Political Science" (2 volumes, 1886,1923, 1916). The theory of the elite was first detailed by V. Pareto in his "Treatise of General Sociology" (XNUMX), in which sociological topics were combined with historical, political-ideological and socio-philosophical. Pareto was an engineer by training, but subsequently became deeply and thoroughly interested in political economy and sociology. Both Italian thinkers proceeded from a very similar idea that in the sphere of the governing activity of each society there are two significantly separate groups - the ruling and the ruled. The biggest innovation they proposed when discussing this issue was the assertion that society is always ruled by an "insignificant minority" in the form of a "political class" (G. Mosca) or "ruling elite" (V. Pareto). Pareto, in his justification of the concept of the ruling elite, proceeded from the assumption that each society can be divided into two strata, or layers - the highest stratum, in which the ruling ones usually reside, and the lower stratum, where the ruled are located. He complicates the usual dichotomy of classes (dominant and subordinate) and singles out two subgroups in the upper stratum (elite) - the ruling and non-ruling elites, and in the lower stratum he considers such a division unjustified.

The ancestor of the theory of "interested groups" was Arthur Bentley (1870-1957), author of "The Process of the Exercise of Government Power: A Study of Social Pressures" (1908). The main thesis here was the assertion that people’s activities are always predetermined by their interests and are aimed, in fact, at ensuring these interests. This activity is usually carried out through groups in which people are united on the basis of common interests. Individual beliefs, individual ideas and ideology in general, personal characteristics of individual behavior are of decisive importance only in the context of the group’s activities and are taken into account to the extent that they help determine “patterns” (models) of group behavior.

Among the latest modifications of classical models and theoretical constructions of political power, a special place is occupied by the typology of power. Max Weber (1864-1920). Following Mosca and Pareto, he saw the main feature of the functioning of parliamentary democracy in the methods of selecting political leaders and controlling the technically oriented administrative bureaucracy.

Author: Khalin K.E.

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