Introduction…………………………………………………………………….3
1. The concept of scientific knowledge………………………………………………..4
1.1. The concept of science…………………………………………………………….4
1.2. Scientific criteria…………………………………………………...6
1.3. Historical development of types of scientific rationality……………8
2. Legal types of scientific knowledge………………………………..11
2.1. The concept of legal knowledge…………………………………….11
2.2. Characteristics of legal types of scientific knowledge…………..12
Conclusion…………………………………………………………………20
Bibliography………………………………………………………………22
INTRODUCTION
At the beginning of the XXI century. In the context of the globalization of the world, both positive and negative aspects of the further development of technological civilization, the basis of which is science, become more and more clear. And in this regard, questions about the goals and means of developing science itself, its internal contradictions, its value orientations, the relationship between science and other forms of culture, its relationship with religion, as well as various types of non-scientific knowledge, are being updated. Science is, first of all, a specific form of culture that gives rise to a special, aggressive form of rationality that develops in a complex historical socio-cultural context. The analysis of scientific rationality and scientific knowledge is a complex, interdisciplinary study that involves the synthesis various kinds and forms of knowledge and spirituality.
The object of research is legal science, the subject of research is legal types of scientific knowledge.
The purpose of the work is to characterize the legal types of scientific knowledge. Tasks to be solved during the work:
Give the concept of scientific knowledge;
Consider legal types of scientific knowledge in accordance with the development of types of scientific rationality.
THE CONCEPT OF SCIENTIFIC KNOWLEDGE
Science concept
Science is a form of people's spiritual activity aimed at producing knowledge about nature, society and knowledge itself, with the immediate goal of comprehending the truth and discovering objective laws. 1 .
Science is creative activity on obtaining new knowledge and the result of this activity: a body of knowledge brought into an integral system based on certain principles. A collection, a sum of disparate, chaotic information, is not scientific knowledge. Like other forms of cognition, science is a socio-historical activity, and not just "pure knowledge". It performs certain functions as a peculiar form of social consciousness.
Reflecting the world in its materiality, science forms a single, interconnected, developing system of knowledge about its laws. At the same time, it is divided into many branches of knowledge (private sciences), which differ among themselves in what side of reality, the form of the movement of matter, they study. According to the subject and method of knowledge, one can single out the sciences of nature - natural science; society - social science (humanities, social sciences); cognition and thinking - logic, epistemology, dialectics. A separate group is made up of technical sciences. A very peculiar science is modern mathematics.
Each such group of sciences can be subjected to a more fractional division. The natural sciences include mechanics, physics, chemistry, biology and others, each of which is subdivided into a number of scientific disciplines - physical chemistry, biophysics, etc. The science of the most general laws of reality is philosophy, which cannot, however, be fully attributed only to science. The philosophical component is essential for any science; it permeates, to one degree or another, scientific knowledge at all its stages.
Being ultimately determined by social practice and its needs, science at the same time develops according to its own laws. Among them are continuity (preservation of the positive content of old knowledge in new ones), the alternation of relatively calm periods of development and periods of "abrupt break" of fundamental laws and principles (scientific revolutions), a complex combination of processes of differentiation (singling out of new scientific disciplines) and integration (synthesis of knowledge , combining the "efforts" of a number of sciences and their methods), deepening and expanding the processes of mathematization and computerization, theorization and dialectization of modern science, the interaction of sciences and their methods, the accelerated development of science, freedom of criticism, the inadmissibility of monopolization and dogmatism of science, its increasingly active role in all spheres of people's life, strengthening its social significance, etc.
The growing role of science and scientific knowledge in the modern world, the complexity and contradictions of this process gave rise to two opposite positions in its assessment - scientism and anti-scientism.
Supporters of scientism argue that "science is above all" and it must be introduced in every possible way as a standard in all forms and types of human activity. By identifying science with natural-mathematical and technical knowledge, scientism believes that only with the help of science understood in this way (and science alone) can all social problems be solved. At the same time, social (humanitarian) sciences are belittled or completely denied, as supposedly having no cognitive value.
"In defiance" of scientism, anti-scientism arose, whose representatives argue the opposite: science is not capable of ensuring social progress, its possibilities here are extremely limited. Moreover, science is the enemy of man, because the consequences of its application are catastrophic (especially in the military field), it destroys culture.
Undoubtedly, both positions regarding science contain a number of rational points, the synthesis of which will make it possible to more accurately determine its place and role in the modern world. At the same time, it is equally wrong to both exorbitantly absolutize science and underestimate, and even more so completely reject it. At the same time, it is necessary to clearly understand the specifics of science and scientific knowledge, their possibilities and limits.
Scientific criteria
1. The main task of scientific knowledge is the discovery of the objective laws of reality: natural, social (social), the laws of knowledge itself, thinking, etc. Hence, the focus of research is mainly on the general, essential properties of the subject, its necessary characteristics and their expression in a system of abstractions, in the form of idealized objects. If this is not the case, then there is no science, because the very concept of scientificity presupposes the discovery of laws, a deepening into the essence of the phenomena being studied.
2. The immediate goal and highest value of scientific knowledge is objective truth, comprehended primarily by rational means and methods, but, of course, not without the participation of living contemplation and non-rational means. From here feature scientific knowledge - objectivity, the elimination of subjective moments that are not inherent in the subject of research in many cases to realize the "purity" of considering one's subject. It must be borne in mind that the activity of the subject is the most important condition and prerequisite for scientific knowledge. The latter is impossible without a constructive-critical and self-critical attitude to reality, excluding inertia, dogmatism, apologetics, subjectivism, and monopoly on truth.
3. Science, to a greater extent than other forms of knowledge, is focused on being embodied in practice, being a “guide to action” to change the surrounding reality and control real processes. The vital meaning of scientific research can be expressed by the formula: "To know in order to foresee, to foresee in order to practically act", and not only in the present, but also in the future.
4. Scientific knowledge is a complex, contradictory process of reproducing knowledge that forms an integral developing system of concepts, theories, hypotheses, laws and other ideal forms fixed in a language - natural or, more characteristically, artificial (mathematical symbols, chemical formulas). Scientific knowledge absorbs the experience of ordinary (everyday) knowledge, but, generalizing the system of facts in the system of concepts, it deepens and develops to its most mature forms, such as theory and law. It does not simply single out the latter (as well as other abstractions), but continuously reproduces them on its own basis, forms them in accordance with its own norms and principles. The process of continuous self-renewal by science of its conceptual arsenal is designated in the methodology by the term "progressiveness" (non-triviality) and is considered an important indicator of scientific character.
5. In the process of scientific knowledge, such specific material means as instruments, tools, and other so-called "scientific equipment" are used, which are often very complex and expensive. In addition, science, to a greater extent than other forms of cognition, is characterized by the use of such ideal (spiritual) means and methods for the study of its objects and itself, such as modern formal logic, dialectics, systemic, cybernetic, synergistic and other general scientific methods and methods. These means - both material and spiritual - are themselves the subject of research in science.
6. Scientific knowledge is characterized by strict evidence, the validity of the results obtained, the reliability of the conclusions. At the same time, there are many hypotheses, guesses, assumptions, probabilistic judgments, etc. That is why the logical and methodological training of researchers, the constant improvement of their thinking, and the ability to correctly apply its laws and principles are of paramount importance here.
7. Science is characterized by constant methodological reflection. This means that in it the study of objects, the identification of their specificity, properties and relationships is always accompanied to some extent by the awareness of the research procedures themselves, that is, the study of the methods, means and techniques used in this process, with the help of which these objects are known.
1.3. History of the development of types of scientific rationalism
In the historical development of science, starting from the 17th century, three types of scientific rationality arose successively, characterized by a different depth of reflection in relation to the scientific activity itself 3 .
The classical type of rationality (XVII-XVIII centuries) proceeded from the fact that in the theoretical explanation and description of an object, it is necessary to abstract from everything that relates to the subject (researcher), the means used by him and the operations performed. Such elimination was considered as a necessary condition for obtaining objectively true knowledge about the world. Of course, at this stage, the research strategy, and to a large extent, its results were determined by the ideological attitudes and value orientations inherent in this era. It is not given to the scientist to get rid of this, although the science of the 17th-18th centuries strove for this. It should be noted that at the level of development of natural science (and social science) of that time, with the leadership of mechanics and the reduction to a mechanical picture of the world of everything obtained by physics, chemistry, biology, social sciences, with the predominance of simple systems as objects of study, such a desire was largely realizable, but, on the other hand, the determinism associated with the personality of the researcher has also not yet had a noticeable negative impact on the results of scientific research. And although in late XVIII- in the first half of the 19th century, the mechanical picture of the world loses its status as a general scientific one and there has been a transition to a new state of natural science, the general style of thinking of the scientist outlined above and the type of scientific rationality are preserved.
The situation is fundamentally changing in connection with the formation of the so-called non-classical natural science (end of the 19th - middle of the 20th century). A non-classical type of scientific rationality is being formed, which already takes into account the dependence of research results on the nature of the means used by the scientist (especially in cases of experiment), and on the specifics of those operations that the object under study is subjected to. As for the subject itself and those intra-scientific and social values and goals that characterize it, all this is still taken out of the brackets, is not reflected in the description and explanation of what has been studied.
And, finally, in the last third of the 20th century, a new, post-nonclassical science was born, which is characterized by such interrelated features as the study of super-complex, self-developing systems and the interdisciplinarity of these studies. This state and trends in the development of modern science corresponds to the post-non-classical type of scientific rationality, which considers the activities of a scientist in a wider field: now the correlation of the acquired knowledge about the object is already taken into account not only with research tools and operations, but also with value-target (both intra-scientific and extra-scientific, social) orientation of the scientist.
It is extremely important to emphasize the special significance of the post-nonclassical type of scientific rationality in the development of modern society. After all, contrary to the opinion of extreme anti-scientists, who see science as an evil demon capable of destroying civilization, the way out of today's ecological and sociocultural situation, obviously, “consists not in the rejection of scientific and technological development, but in giving it a humanistic dimension, which, in turn, poses the problem of a new type of scientific rationality, which explicitly includes humanistic guidelines and values.
LEGAL TYPES OF SCIENTIFIC KNOWLEDGE
2.1. The concept of legal knowledge
Legal knowledge in the application of law refers to the special, i.e. one that is carried out within the framework of practical activity and for it.
Legal knowledge does not aim to clarify the patterns of these phenomena, their socio-political, economic essence; at the same time, it is not spontaneous (everyday), but has a directed character, aimed at studying these facts, circumstances in connection with practical tasks - the application of legal norms. Thus, legal knowledge has a local subject and relatively limited tasks. In addition, this type of knowledge (primarily judicial) is characterized by special methods, techniques, forms of establishing facts, which, to one degree or another, receive regulation in the legislation.
Legal knowledge consists of two main varieties: firstly, from the knowledge of the legal prescriptions that form the legal basis for application, and, secondly, from the knowledge of the actual circumstances of the case. Taken together, they form one of the common, cross-cutting elements of the application of law - the intellectual side of its content 4 .
Legal knowledge can be: a) direct and b) indirect.
Direct knowledge (when a sensually perceived object is the subject of direct knowledge) in the field of application of law, especially in judicial activity, has a narrow meaning. This may include, for example, the establishment of the fact of an unlawful act when an administrative body imposes a sanction at the scene of the offense, and in judicial activity, the perception by the court in procedural forms of legal facts that continue to exist at the time of consideration of this legal case and which are directly recognized by the court (for example , direct establishment by the court of the nature of the isolation of the disputed room, its position as a checkpoint).
The decisive role in legal knowledge belongs to mediated activity. So, when establishing the actual circumstances of the case, the reproduction of reality occurs with the help of other factual data-evidence. And this is quite understandable. The circumstances of the case, established by the law enforcement authorities, are mostly related to the past. They, as a rule, can be reproduced using certain information - prints, marks left on things, etc. Legal knowledge of legal norms – interpretation – also has an indirect character: it is carried out through a verbal-documentary form, a form of legal expression of the will of the legislator.
2.2. The concept of legal types of scientific knowledge
Legal science, like other sciences, has had scientific revolutions in its development - these are the stages in the development of science when there is a change in research strategies that are set by its foundations. The foundations of science include several components. Chief among them; ideals and methods of research (ideas about the goals of scientific activity and ways to achieve them); scientific picture of the world (an integral system of ideas about the world, its general properties and patterns, formed on the basis of scientific concepts and laws).
For example, in classical science of the XVII-XVIII centuries. the ideal was to obtain absolutely true knowledge of nature; the method of cognition was reduced to the search for mechanical causes that determine the observed phenomena; the scientific picture of the world was of a mechanical nature, since any knowledge about nature and man was reduced to the fundamental laws of mechanics; classical science found its justification in the ideas and principles of materialistic philosophy, which considered cognition as a reflection in the mind of the cognizing subject of the properties of objects that exist outside and independently of the subject.
How and why do scientific revolutions occur? One of the first developers of this problem, the American philosopher T. Kuhn divided the stages of the development of science into periods of "normal science" and the scientific revolution. During the period of "normal science" the vast majority of representatives of the scientific community accepts certain models of scientific activity or paradigms, solves all scientific "puzzle problems" in Kuhn's terminology and within their framework. The content of paradigms includes a set of theories of methodological norms, value standards, worldviews. The period of "normal science" ends when problems and tasks appear that cannot be solved within the framework of the existing paradigm. Then it “explodes”, and a new paradigm comes to replace it. This is how the revolution in science takes place.
There are four scientific revolutions that legal science has also overcome in its development. The first of these was the revolution of the 17th century, which marked the emergence of classical science. The second occurred at the end of the 18th - the first half of the 19th centuries. and its result was the transition from classical science, focused mainly on the study of mechanical and physical phenomena, to a disciplined science. The emergence of such sciences as biology, chemistry, geology, etc., contributes to the fact that the mechanical picture of the world ceases to be general scientific and worldview. Biology and geology bring into the picture of the world the idea of development, which was not in the mechanical picture of the world.
The specificity of objects studied in biology and geology could not be expressed using the methods of classical science research: new ideals of explanation were needed, taking into account the idea of development.
There are also changes in the philosophical foundations of science. The central problems of philosophy in this period: the issues of differentiation and integration of scientific knowledge obtained in different scientific disciplines, the correlation of various methods of scientific research, the classification of sciences and the search for its criteria.
This revolution was caused by the emergence of fundamentally new objects of research that do not have a place in classical science, which led to changes in norms, ideals, and methods.
The third revolution covers the period from the end of the 19th to the middle of the 20th century. Revolutionary transformations occurred simultaneously in many sciences: relativistic and quantum theories were developed in physics, genetics in biology, quantum chemistry in chemistry, etc. New branches of scientific knowledge are emerging - cybernetics and systems theory. As a result, a new, non-classical, natural science was formed, the foundations of which were radically different from the foundations of classical science.
The ideals and norms of non-classical science were based on the denial of the rational-logical content of ontology, the ability of the mind to build the only true ideal model of reality, which allows one to obtain the only true theory. It was possible to recognize the truth of several theories at once.
The ideal of explanation and description is changing. If in classical science the ability to characterize an object as “in itself” was attributed to explanation, then in non-classical science, as a necessary condition for the objectivity of explanation and description, the requirement was put forward to take into account and record the fact of the interaction of the object with the instruments with which it was studied. Science has recognized that the object is not given to thinking in its “naturally virginal”, primordial state: it does not study the object as it is “in itself”, but as it appeared in the observation of its interaction with the device.
A picture of the world corresponding to non-classical natural science arose, in which the idea of nature appeared as a complex dynamic and hierarchized unity of self-regulating systems.
The philosophical foundations of science have also changed. Philosophy introduced the idea of the historical variability of scientific knowledge into the system of substantiation of the latter, recognized the relativity of truth, and developed an idea of the activity of the subject of knowledge. Thus, in Kant's philosophy, the activity of the subject was reduced to his ability to constitute the world of phenomena, that is, the world of objects of scientific knowledge. Obviously, there could be no question of any knowledge of the object as it “really is”. Many philosophical categories have undergone significant changes, with the help of which philosophy solved the problems of scientific knowledge. This refers to the categories of part, whole, cause, chance, necessity, etc. The change in content was due to the discovery in science of the fact that complex systems do not obey, for example, the classical principle according to which the whole is the sum of its parts, the whole is always greater than it parts. It became clear that the whole and the part are in more complex relationships in complex systems. Much attention began to be paid to the category of chance, because science has discovered the enormous role of chance in the formation of the laws of necessity.
The fourth scientific revolution began in the last third of the 20th century. and was accompanied by the emergence of post-non-classical science. The objects of research at this stage of the development of science are related systemic formations, which are already characterized not only by self-regulation (non-classical science also dealt with such objects), but also by self-development. The scientific study of such systems requires fundamentally new strategies, which are partly developed in synergetics. Synergetics is a direction of interdisciplinary research, the object of which is the processes of self-development and self-organization in open systems (physical, chemical, biological, ecological, cognitive, etc.). It was found that matter in its form of inorganic nature is capable of self-organization under certain conditions. Synergetics for the first time discovered the mechanism of the emergence of order from chaos, disorder.
This discovery was revolutionary, because before science recognized evolution only in the direction of increasing the entropy of the system, that is, increasing disorder, disorganization, chaos. Synergetics has discovered that the system in its development passes through points of bifurcation (states of instability) and at these moments it has a fan-shaped set of possibilities for choosing the direction of further development. This choice can be realized through small random influences, which are a kind of "push" of the system in the formation of new stable structures. If we take this fact into account, it becomes obvious that the interaction of a person with such systems requires increased responsibility, since a human action can become that “small random impact” that will modify the space of possible states of the system. The subject becomes involved in the choice by the system of some path of development from the possible ones. And since the choice itself is irreversible and the possible path of development of the system cannot be calculated with great certainty, the problem of human responsibility for thoughtless interference in the process of self-development of complex systems becomes obvious.
The foregoing allows us to conclude that post-non-classical science deals with systems of special complexity that require fundamentally new cognitive strategies. Here the picture of the world is built on the basis of ideas, evolution and historical development of nature and man. All special pictures of the world that are formed in various sciences can no longer claim to be adequate. They become only relatively independent fragments of the general scientific picture of the world.
One more essential feature of the norms and ideals of post-non-classical science should be noted. From the above example, it is clear that the explanation and description of the object under study cannot be value-neutral. As part of an objectively true analysis, axiological factors will be present, and the orientation towards truth will be correlated with ethical and humanistic principles.
The philosophical foundations of post-non-classical science are also constructed in a new way. Philosophy fixes the dependence of scientific knowledge on sociality and the state of culture, with its value and worldview orientations, and also recognizes the historical variability of ontological assumptions, ideals and norms of knowledge. Many features of the philosophical foundations of post-non-classical science are expressed in postmodern philosophy.
Scientific revolutions were at the same time a change in the types of rationality. The type of scientific rationality is the state of scientific activity, presented as the relationship "subject - means of research - object" and aimed at obtaining objective truth. At different stages of the historical development of science, coming after scientific revolutions, its own type of scientific rationality dominated. The scientific revolutions described above correspond to classical, non-classical, post-non-classical types of scientific rationality.
The classical type of rationality in legal activity, understood as the relationship "subject - means - object", singles out the object as the main component of this relationship. At the same time, the efforts of the scientist are spent on excluding as completely as possible from the theoretical explanation and description of the object everything that relates to the subject, means and methods of inquiry. This is seen necessary condition obtaining an objective and true law about the object. At the stage of the classical type of rationality, legal scholars do not take into account the activity of the subject, the influence of cognitive means on the process of cognition, and also do not realize the socio-cultural conditionality of the content of the foundations of science.
The non-classical type of scientific rationality in legal science, in contrast to the classical one, is characterized by awareness of the influence of cognitive means on an object. This influence is taken into account and introduced into theoretical explanations and descriptions. That is, in relation to "subject - means - object", the researcher's attention is focused on the object and at the same time on the means. And since the subject uses the means of cognition, his activity begins to be taken into account. But the fact is still not realized that the goals of science, which determine the research strategies and methods of formation, selection of objects, are due to the worldview and value attitudes that dominate in culture..
The post-nonclassical type of rationality for legal science is an exit to the level of awareness of the fact that knowledge about an object is correlated not only with the features of its interaction with the means (and therefore also with the subject using these means), but also with the value-target structures of activity subject. In other words, it is recognized that the subject influences the content of knowledge about the object not only due to the use of special research tools and procedures, but also due to its value-target settings, which are directly related to extra-scientific, social values and goals. In postclassics, social life, its values and goals are recognized as components (explicit or implicit) of scientific knowledge about an object, which inevitably restructures the entire categorical apparatus of the philosophy of science and epistemology 5 .
Changing the types of rationality is a process of deepening the reflective work of thinking that accompanies cognitive activity. Its change and complication is due to both intra-scientific reasons (accumulation of factors that cannot be explained within the existing scientific paradigm; discovery of new types of objects, associated, for example, with the improvement of instruments and methods of observation, etc.), and extra-scientific reasons (value and worldview guidelines and attitudes in the culture of a particular era).
Each new type of rationality is “inscribed” in the corresponding scientific paradigm. But there is no deep gap between them; the new type does not destroy the old one, but shows the limits of its applicability. Therefore, saying that the current era is the era of post-non-classical science, one cannot "write off" the former types of rationality: classical and non-classical. Their methodological techniques, norms and ideals of scientific knowledge are still in demand in the study of objects of a small degree of complexity, where the post-nonclassical type of rationality is often redundant.
Predicting the future of legal science, we can say that the status of the dominant and determining belongs to the post-nonclassical type of rationality. V. S. Stepin writes about it this way: “When modern science, at the forefront of its search, has placed at the center of research unique, historically developing systems in which man himself is included as a special component, then the requirement for explication (interpretation) of values in this situation does not not only does not contradict the traditional setting for obtaining objectively true knowledge about the world, but also acts as a prerequisite for the implementation of this setting.
CONCLUSION
Three major stages of the historical development of science, including legal science, each of which is opened by the global scientific revolution, can be characterized as three historical types of scientific rationality that have replaced each other in the history of technogenic civilization. This is classical rationality corresponding to classical science; non-classical rationality corresponding to non-classical science and post-non-classical rationality.
Each stage is characterized by a special state of scientific activity aimed at the constant growth of objectively true knowledge. According to the principle of systematic scientific knowledge, this activity can be considered as a complexly organized network of various acts of systematic transformation of objects, when the products of one activity pass into another and become its components. From here the structure of the elementary act of human activity is derived as the relationship "subject - means - object", which is the basis for considering the historical types of scientific rationality.
The classical type of scientific rationality (XVII - the first half of the XIX centuries), focusing on the object, seeks to eliminate everything related to the subject (researcher), means and operations of his activity in the course of theoretical explanation and description. Such elimination is considered as a necessary condition for obtaining objectively true knowledge about the world. Objects in classical natural science were considered mainly as small (simple) systems.
The non-classical type in legal science (the end of the 19th - the middle of the 20th centuries) contributed to a significant expansion of the field of objects under study, opening the way to the development of large, complex self-regulating systems. The non-classical type of rationality takes into account the links between knowledge about the object and the nature of the means and operations of activity, considering the object as woven into human activity.
In the modern era, new radical changes are taking place in the foundations of science. These changes can be characterized as the next global scientific revolution, during which a new post-non-classical science is born.
The post-nonclassical type of scientific rationality expands the field of reflection on activity. It takes into account the correlation of the acquired knowledge about the object not only with the peculiarity of the means and operations of the activity, but also with the value-target structures. The objects of modern interdisciplinary research are increasingly becoming unique systems characterized by openness and self-development.
The emergence of a new type of rationality and a new image of science should not be understood as the complete disappearance of the ideas and methodological guidelines of the previous stage. On the contrary, there is continuity between them. The new type of rationality only limits the scope of the previous one, determining its applicability only to certain types of problems and tasks.
BIBLIOGRAPHY
Vengerov A. B. Theory of state and law. - 3rd ed. – M.: Jurisprudence, 2000.
Krapivvensky S. E. General Course of Philosophy. - Volgograd: Volgograd State University Publishing House, 2000.
General theory of state and law. Academic course. In 2 volumes. T. 1. / Paul ed. Prof. M. N. Marchchenko. - M.: Publishing house "Zertsalo". 2001.
General Theory of Law and State / Under the editorship of VV Lazarev. - 3rd ed., revised. and additional – M.: Yurisst, 2000.
Philosophy / Under the editorship of V. P. Krapivensky. - 9th ed. – Rossstov n/a: Phoenix, 2005.
For periodization of legal science the classical Ancient world, the Middle Ages, the New and the Newest time is acceptable, which does not create the difficulties generated by the formational approach, however, the chronological principle underlying it does not always allow us to identify the specifics of the development of political and legal ideology. Meanwhile, any periodization should be built in accordance with the logic of the development of the subject itself, since the problem of determining the main periods of history is not so much a classification as a theoretical one.
The regularity of the development of legal science is that any doctrine of the state, law, politics is developed taking into account the contemporary political and legal reality, which is necessarily reflected in the most seemingly abstract theoretical construction. Each great epoch of estate and class societies had its own legal institutions, concepts and methods of their theoretical explanation, peculiar to it. Therefore, the focus of attention of lawyers of different historical eras there were various legal issues related to the peculiarities public institutions and principles of law of the corresponding historical type and type. So, in city states Ancient Greece the main attention was paid to the structure of the state, the problem of the circle of persons allowed to participate in political activities, state-legal ways to strengthen the domination of the free over the slaves. This was the reason for the increased attention to the theoretical definition and classification of the forms of the state, the search for the reasons for the transition from one form of government to another, the desire to determine the best, ideal form of government. In the Middle Ages, the main subject of legal discussions was the question of the relationship between the state and the church. The focus of socio-political thought of the XVII-XVIII centuries. the problem was not so much the form of government, but the form political regime, the problem of legality, guarantees of equality before the law, freedom and individual rights. XIX-XX centuries brought to the fore the question of social guarantees of human rights and freedoms, and from the end of the XIX century. the problem of forms of government and the political regime of the state was significantly supplemented by the study of its relations with political parties and other political organizations.
Law occupies a leading position in relation to the state in some religions (Brahmanism, Islam), and therefore legal problems are the main ones in the content of political and legal doctrines built on the ideological basis of the corresponding religion. In the history of jurisprudence, there have also been quite a few projects, not related to religion, of detailed regulation of the life of society by the invariable laws, projects assigning the state a secondary role as the guardian of these laws ("Laws" by Plato, "Code of Nature" by Morelli, "Journey to the Land of Ophir ..." Shcherbatov and etc.). The problems of law came to the fore in a new way in the era of the formation of civil society in those legal doctrines who substantiated the legal equality of people, their rights and freedoms, assigning the role of the guarantor of human rights to the state (Locke, Kant, etc.). At the same time, there have been many concepts in history that pay more attention to the problems of politics and the state (Machiavelli, Boden, and others).
In an enlarged form, the typology of the history of legal science includes three major eras corresponding to the main periods of a state-organized society:
1) the legal science of a class-caste society;
2) legal doctrines of the period of transition to civil society;
3) legal science of civil society.
To first refers to the period from the emergence of law and the state to about the XV-XVI centuries. According to the formation scheme, this period includes asian way production, slave and feudal societies; according to the general history scheme, these are the Ancient World and the Middle Ages.
The peculiarity of this period, which in historical science is sometimes called the "great feudal formation", is that the social structure of society was determined by law, which was not equal for different classes, and the state (more often monarchical than republican) depended on the highest, most privileged class and stood guard over social and legal inequality. The legal thought of this period strictly distinguished between free and not free people, privileged and unprivileged, "their own" (citizens of a given state, members of a caste or class, persons of the same tribe or race, adherents of a particular religion and church, comrades in the workshop, etc.) and "strangers". Even in the most developed states, where there were embryos of civil society, when defining the state as a “people's affair”, the people meant only a small part of society (free, having citizenship), and the extremely rare reasoning of some philosophers of the 5th century. BC. that all people are by nature equal, still provide abundant food for assumptions that these arguments should either be interpreted restrictively, in a class sense, or attributed to an incorrect reading or transmission of ancient sources. Attempts to theoretically substantiate the universal legal equality of people entailed fierce repressions against political thinkers in estate states.
Second period covers the XVI-XVIII centuries. It does not fit into the formation scheme at all, and according to general historical periodization, the late Middle Ages and the beginning of the New Age belong to it. For the history of legal science, this period is of exceptional importance as an era of grandiose shifts, searches, discoveries in the field of political and legal ideology and in general. spiritual development Europe. The great upheavals and restructurings of those centuries are usually denoted by proper names: Renaissance, Reformation, Enlightenment. The general idea and historical meaning of this period consisted in the recognition and approval of the universal equality of people before the law. In the legal doctrines of this period, the theoretical model of a classless, civil society of equal people, freely showing their personality, enterprise and creative initiative, was essentially formulated, the ideal of a society freed from class boundaries, unnecessary prohibitions and legal regulation was substantiated.
The result of political revolutions in a number of European countries of the XVII-XVIII centuries. was the formation and development of civil (non-estate, industrial, capitalist) society (XIX-XX centuries). It - third big period development of legal science, the problems of which are replenished with a number of new topics generated by the complexities of the development of modern civil society law.
The connection between political and legal doctrines of different eras is already due to the influence of the stock of theoretical ideas created by scientists of previous eras on the subsequent development of legal science. Such a connection (continuity) is especially noticeable in those eras and periods of history in which the philosophy and other forms of consciousness of previous eras are reproduced and legal problems are solved, somewhat similar to those that were solved in previous times. Thus, in Western Europe, the struggle against the dominance of the Catholic Church and against feudal monarchies caused widespread reproduction in legal treatises of the 16th-17th centuries. ideas and methodology of ancient authors who did not know Christianity and substantiated the republican system. In the struggle against the Catholic Church and feudal inequality, the ideas of primitive Christianity were used; during periods of revolutionary events, the democratic ideas of ancient authors, republican valor politicians Ancient Greece and ancient rome.
A number of historians and jurists have attached decisive importance to this influence, trying to present the entire or almost entire history of legal thought as an alternation, a cycle of the same ideas and their various combinations. Such an approach exaggerates the possibility of purely ideological influence, which in itself is incapable of generating a new ideology, if there are no public interests that create the ground for the perception of ideas and their dissemination.
Influence and reproduction are far from the same thing: a legal doctrine that has developed under the influence of other doctrines differs from them in some way (otherwise it is the same doctrine that is simply reproduced); the new theory agrees with some ideas, rejects others, introduces changes into the existing stock of ideas.
Under new historical conditions, old ideas and terms can acquire a completely different content and interpretation. Thus, the term "law of nature" (natural law) arose in ancient world; this term, for example, was used by the philosophers of Greece in the 5th century. BC. In the 17th century a theory of natural law arose, directed against class inequality and the feudal system. With the similarity of terminology, the essence of the doctrines is opposite for the reason that if the theorists of natural law of the XVII-XVIII centuries. demanded the conformity of positive law (i.e., the laws of the state) with natural law (people are equal by nature, etc.), then it was precisely this requirement that ancient thinkers did not have.
Equally unfounded are attempts to look for the ideological origins of the theory of separation of powers in the writings of the ancient Greek historian Polybius or the medieval philosopher Marsilius of Padua. As you know, without representative institutions in the structure of the state, the separation of powers is practically impossible, and there were no such institutions at the time of Polybius and Marsilius of Padua.
Attempts have been made to present the history of legal science as a repetition of basic legal ideas: power, freedom, equality, and so on. The most extensive attempt of this kind was the concept of B. N. Chicherin, who considered the history of legal thought as an alternation of "political principles" (law, freedom, common good and power), which are embodied in the doctrines of successive thinkers. The attempt did not find support, since many doctrines did not fit into this scheme, and it remained unclear why one political beginning replaces another, and precisely in the sequence determined by the historian.
“I have no doubt,” Hobbes wrote, “that if the truth that the three angles of a triangle are equal to the two angles of a square were contrary to anyone’s right to power or the interests of those who already have power, then, since it would be in the power of those whose interests are affected by this truth, the teaching of geometry would be, if not challenged, then supplanted by the burning of all books on geometry.
The works of legal science are most often the result of individual creativity, but those of them that acquire social significance have certain social functions, which include the ideological self-determination (self-consciousness) of any social group on the problems of law, state, politics, as well as influence on mass political and legal consciousness, on the policy of the state and the development of law.
For the development of the rudiments of legal science, the expansion of empirical knowledge in Ancient Greece. The diversity of political experience accumulated in the states-policies stimulated theoretical generalizations of the practice of exercising power and the creation of exercises that raised the problems of the emergence of states, their classification, and the best form of organization. The legal thought of Ancient Greece constantly turned to a comparative study of the laws that the first legislators established in the policies (Lycurgus - in Sparta, Solon - in Athens). In the works of Greek thinkers, a classification of the forms of the state (monarchy, aristocracy, democracy, etc.) was developed, which became part of the conceptual apparatus of the modern one.
emergence sophist schools as a social movement was caused by the strengthening of the democratic system of Athens in the second half of the 5th century. BC. Sophists (the word comes from the Greek "sophos" - wise) were then called philosophers who taught the art of arguing, proving, speaking in court and at the national assembly. In this regard, the sophists implemented practically one of the program ideas of democracy - the idea of teaching wisdom, disseminating knowledge.
The sophists focused on issues of law, morality, methods of evidence and oratory. Interest in these problems was largely due to the ideological principles of democracy: since knowledge was assigned the role of a criterion in the selection of candidates for public office, the main place in the training should have been the preparation of the student for political activity, for speeches in the people's assembly and court.
According to established tradition, senior and junior sophists are distinguished. Protagoras, Gorgias, Hippias and Antiphon belonged to prominent representatives of the older generation of sophists. The senior sophists held generally progressive, democratic views.
One of the founders of this trend was Protagoras. According to the famous myth of Protagoras, which tells about the emergence of society, man initially differed from animals only in the ability to handle fire. This art was taught to him by Prometheus, who stole fire from the gods. Gradually, people mastered crafts, but continued to live scattered, they did not have weapons, and they died from the attacks of wild animals. People did not know how to live in a community. As soon as they got together, strife immediately began. Then the gods introduced shame and truth, giving them to all people, so that everyone became involved in justice and political art. No state can stand, Protagoras concluded, if a few possess political art.
The myth of Protagoras only superficially resembles religious traditions. The creation of this myth was aimed precisely at refuting the traditional mythological ideas about the "golden age" in the past, about the need to return to antiquity. Protagoras draws in his myth the helpless existence of man before the formation of the state, promotes the ideas of the upward development of culture and the improvement of social life as knowledge is accumulated. Protagoras argued that laws are works of art and that, like any other craft, justice in public affairs can be learned. Virtue, he remarked, is something that will come with time. The idea of equal involvement of people in justice was given as a rationale for the fact that all citizens should participate in the government of the state.
Protagoras and other senior sophists emphasized the changing nature of man's ideas. On the same subject, Protagoras taught, two opposite opinions can be expressed, and neither of them will be more true than the other. For example, food will seem bitter to a sick person, and sweet and tasty to a healthy person. They will both be right in their own way. There is simply no universally recognized truth and a single good. The bearer of knowledge and justice is not only the sage, but every single person. Protagoras expressed this idea in a formula that was perceived by his contemporaries as a kind of slogan of the sophists: "The measure of all things is man, existing, that they exist, and not existing, that they do not exist."
Developing ideas about the relativity and conventionality of morality, Gorgias singled out virtue for a man and a woman, free and slave, virtue for each age, occupation and specific case. Sophists of the older generation filled the doctrine of morality with individualistic content. It was proposed to evaluate the justice of actions depending on the conditions of the place and time, the state of the person, etc. Concepts of this kind, denying the existence of an absolute single good, later received the name of ethical relativism.
In the spirit of the requirements of a strengthened slave-owning democracy, the senior sophists developed the doctrine of law. They argued that the laws, in fact, are the highest justice that no person can claim, no matter how wise and virtuous he may be. The law is an expression of agreed, "mutual justice" (Protagoras), something like the sum of individual virtues. Proceeding from this, the senior sophists supplemented political theory with the definition of law as a contract, as a joint establishment of citizens or people.
Hippias understood by law "what the citizens, by common agreement, wrote, establishing what should be done and what should be abstained from." Antiphon equated justice with the observance of the law. Justice lies in "not violating the laws of the state in which you are a citizen." The prescriptions of laws are the result of an agreement.
The surviving sources show that some sophists used the opposition of laws and nature to criticize the existing polis orders. Laws, argued Antiphon, are artificial and arbitrary, while in nature everything happens by itself, out of necessity. The Hellenes, honoring the noble, act like barbarians. "By nature, we are all equal in all respects, moreover (equally) both barbarians and Hellenes. It is appropriate to pay attention to the fact that all people have the same needs by nature." One of the younger sophists Alkidamant stated that "God made everyone free, nature made no one a slave."
The above statements of Antiphon and Alcidamantes are nothing but the simplest form moral criticism of the privileges of the aristocracy and free citizens. It would be a mistake to see something more here - the condemnation of slavery, the recognition of the natural rights of man, the equality of all people, and so on. The political thought of the slave-owning democracy was not aware of the idea of universal equality. It is no coincidence that Antiphon's declaration of the equality of Hellenes and barbarians is adjacent to a statement where the concept of "barbarian" is used as a synonym for human baseness. Antiphon repeats here the widespread judgments about the superiority of Greek culture over the barbarian world. The "natural equality" of the sophists by no means excluded slavery under "law" or "intellectual superiority."
Legal issues dedicated to the largest dialogues Plato- "State" and "Laws". In the dialogue "The State", Plato considered the ideal state system by analogy with the cosmos and the human soul. Just as there are three principles in the human soul, so there must be three estates in the state. The rational beginning of the soul in an ideal state corresponds to rulers-philosophers, the furious beginning - warriors, the lustful - farmers and artisans (the lower class). Class division of society Plato declared a condition for the strength of the state as a joint settlement of citizens. Unauthorized transition from the lower class to the class of guards or philosophers is unacceptable and is the greatest crime, because each person should be engaged in the work to which he is destined by nature. "Mind your own business and not interfere with others - this is justice."
Plato's definition of justice was intended to justify social inequality, the division of people into higher and lower from birth. In support of his aristocratic ideal, Plato proposed to inspire citizens with myths about how God mixed particles of metals into the souls of people: he mixed gold into the souls of those who are able to rule and therefore are most valuable, into the souls of their assistants - silver, and into the souls farmers and artisans - iron and copper. If the latter have a child with an admixture of precious metals, then his transfer to the highest ranks is possible only at the initiative of the rulers.
At the head of the state, Plato argued, it is necessary to put philosophers involved in the eternal good and capable of embodying the heavenly world of ideas in earthly life. "Until philosophers reign in the states or the so-called current kings and lords begin to philosophize nobly and thoroughly ... until then the states will not get rid of evils." In the project of an ideal organization of power, Plato departs from the principles of the "aristocracy of the blood" and replaces it with the "aristocracy of the spirit." Substantiating this idea, he endowed the philosopher-rulers with the qualities of a spiritual elite - intellectual exclusivity, moral perfection, etc.
In order to achieve unanimity and cohesion of the two upper classes, which together form the class of guardians of the state, Plato establishes for them a community of property and life. "First of all, no one should have any private property, unless it is absolutely necessary. Then no one should have such a dwelling or pantry, where everyone who wants it would not have access." The guards receive food supplies from the third estate in the form of in-kind supplies. The guards are forbidden to have a family; a community of wives and children is introduced for them.
Plato illuminated the way of life of the lower class from the point of view of the diversity of social needs and the division of labor. Peasants and artisans were allowed to have private property, money, trade in the markets, etc. Noting the importance of the division of labor in the economic life of society, Plato nevertheless advocated the restriction of economic activity and the preservation of an agriculturally closed, self-sufficient state.
The prototype of the ideal political system for Plato, the aristocratic Sparta served, more precisely, the patriarchal relations that remained there - the organization of the life of the ruling class on the model of a military camp, remnants of communal property, group marriage, etc. The degeneration of the aristocracy of the wise, according to him, entails the assertion of private property and the conversion into slaves farmers from the third estate. This is how the Cretan-Spartan type of state arises, or timocracy (from "time" - honor), the domination of the strongest warriors. A state with timocratic rule will forever fight.
Oligarchy - appears as a result of the accumulation of wealth from individuals. This system is based on a property qualification. A few rich people seize power, while the poor do not participate in governance. The oligarchic state, torn apart by the enmity of the rich and the poor, will constantly be at war with itself. The victory of the poor, according to Plato, leads to the establishment of democracy - the power of the people. Public positions in a democracy are filled by lot, as a result of which the state becomes intoxicated with freedom in its undiluted form, beyond all measure. Self-will and anarchy reign in a democracy.
The picture drawn by the philosopher of the transition from one state to another, in essence, was a conceptual and logical scheme. At the same time, it reflects the real processes that took place in the ancient Greek states (the enslavement of helots in Sparta, the growth of property inequality, etc.), which gave this scheme the appearance of a historical concept. Ideologically, it was directed against democratic teachings about the improvement of social life as knowledge developed. Plato sought to defame any changes in society that deviated from the old ways, and pursued the idea of a cyclical development of history.
The main differences between the "Laws" dialog and the "State" dialog are as follows.
First, Plato renounces the collective property of philosophers and warriors and establishes a single procedure for the use of property by citizens. The land is the property of the state. It is divided into plots of equal fertility. Each citizen receives a land plot and a house, which he uses on the basis of ownership. Citizens can acquire all other types of property in private ownership, but its size is limited. For convenience of calculations (when filling government posts, recruiting troops, etc.), the exact number of citizens is provided - 5040. This number includes only land owners; craftsmen and merchants do not have civil rights.
Secondly, the division of citizens into estates is replaced by gradation according to the property qualification. Citizens acquire political rights depending on the amount of property, enrolling in one of four classes, differing in the degree of wealth. Having become rich or impoverished, they move to another class. Together, the citizens form the ruling class. In addition to employment in their own household, they are charged with the duty of serving in the army, the administration of certain government posts, participation in joint meals (sissitia), sacrifices, etc.
Thirdly, the production needs of agriculture are now supposed to be fully met by slave labor (in the dialogue "The State" slaves were mentioned, but Plato did not find a place for them in the economy of an ideal policy). In the "second in dignity" state, "agriculture is left to the slaves, who gather from the land a harvest sufficient for the people to live in contentment." Along with the recognition of slavery, Plato also has a disdainful attitude towards productive labor.
Fourthly, Plato describes in detail in the dialogue the organization of state power and the laws of the best order. Unlike the first project, the ideas of a mixed form of the state and a combination of moral methods of exercising power with legal ones are carried out here.
All elected state bodies and rulers are required to act in strict accordance with the law. As for the sages from the "night meeting", they are involved in divine truth and in this sense are above the law. Having agreed that public life must be regulated by the norms of written law, Plato, for his own ideological reasons, could not allow the rule of law over religious morality. “After all, if, by the will of divine fate, a person ever appeared who was capable enough by nature to assimilate these views,” Plato wrote, “then he would not at all need laws that would govern him. Neither the law, nor any no order is superior to knowledge."
Aristotle law identifies with political justice, thereby emphasizing its connection with the state as moral communication between free citizens. Law does not exist outside of political communication. "People who are not in such relations cannot have political justice with respect to each other." Law is therefore absent in the relationship of masters and slaves, fathers and children, under despotic power.
Political law is divided into natural and conditional (established). "Natural law is that which everywhere has the same value and does not depend on the recognition or non-recognition of it. Conditional law is that which originally could be without essential difference this or that, but once it is determined [this indifference ceases]." Aristotle does not specifically enumerate the prescriptions of natural law anywhere. According to the meaning of his concept “by nature”, the family, slavery, private property, the war of the Greeks with the barbarians, etc. exist and correspond to these prescriptions. By conditional law, he understands the laws established in the state, including both written laws and unwritten customary law.
Natural law is above law; among laws, the unwritten ones, based on custom, are more important. Aristotle emphasized that the decisions of the people's assembly and rulers are not laws in the proper sense of the word and should not contain general prescriptions. "The law must rule over everything; officials and people's assembly discussion of particular questions should be left."
Directed against the teachings of slave-owning democracy, the Aristotelian concept was intended to belittle the importance of written laws, to subordinate them to the norms of customary law and pre-established, as Aristotle believed, justice in nature. "Laws based on custom are of greater importance and concern more important matters than written laws," the philosopher argued.
Aristotle's legal theory summarized the development of the views of the landowning aristocracy in Ancient Greece. As private property and slave-owning relations penetrated into agriculture, the ideologists of the polis nobility consistently moved from traditional views to the recognition of the economic role of slavery, legal methods of regulating public life (Plato's Laws), to an apology for private property and the equality of citizens before the law in the field of property relations. (in Aristotle's Ethics). They could not rise above this. The aristocracy, associated with the polis system of land tenure, was able to retain its dominant position only if it retained a subsistence economy, "moderate" or "medium" property and patriarchal polis traditions and customs in the sphere of administration. It was no coincidence that Aristotle repeated after Plato that laws are not needed for an aristocracy possessing an "excess of virtue".
Secular jurisprudence how an independent branch of knowledge has developed in Ancient Rome in II-I centuries. BC. By its nature and direction, it was a specific product of the ideology of those sections of the slave-owning nobility who were interested in strengthening the legal protection of private property and at the same time opposed the expansion of the legislative activity of the state in the field of property relations, relying more on the advice and consultations of a few selected lawyers ( "the right of the wise") than on the written law.
The heyday of Roman jurisprudence falls on the era of the early empire (I century BC - III century AD). During this period, the emperors, seeking to limit the legislative power of the senate, grant the most prominent jurists the right to give explanations and interpretations of existing legal norms, binding on all officials and judges. The explanations of jurists are thus equated with the law. From the second half of the 3rd century, when the legislative power was concentrated in the hands of the emperors, the granting of such a privilege ceased, and Roman jurisprudence fell into decay.
Gaius, Papinian, Paul, Celsus, Ulpian, and Modestinus were among the best-known jurists of the early imperial period. Lengthy excerpts from the writings they wrote contain Justinian's Digests. Lawyers derived the concept of law, like Cicero, from the Stoic idea of the world, universal law of nature. According to the definition of Celsus, adopted by many Roman jurists, law is the art of goodness and justice (ars boni et aequi). Justice, Ulpian clarified, is "the knowledge of divine and human affairs, the science of just and unjust."
As part of the law that was in force in the Roman Empire, lawyers distinguished three parts: natural law (ius naturale), the law of peoples (ius gentium) and the law of citizens (ius civile). Natural law, according to them, applies to both humans and animals. His ordinances include marriage, the family, and the upbringing of children. By natural law, everyone is born free.
The law of peoples, in contrast to the natural law, covers the rules that the world mind has established for people. The Romans use this right in their relations with conquered peoples and neighboring states. By the law of the peoples war, slavery, the foundation of kingdoms, international trade and a number of other regulations. The right of citizens, or civil law, governs relations between free Romans. Civil law, Guy pointed out, is "the state's own right." Papinian called laws, decisions of the plebeians, decrees of the senate, decrees of the princeps and "opinions of the wise" as sources of this law. The distinction between the rights of peoples and the rights of citizens, carried out in Roman jurisprudence, was intended to justify slavery, aggressive wars and the inequality of conquered peoples in relation to the Romans.
Law in ancient Rome was divided into private and public. According to the famous Ulpian formula, public law refers to the position of the state, private - to the benefit of individuals. Private law, he believed, includes the prescriptions of natural law, the prescriptions of the law of peoples, and the prescriptions of civil law.
Lawyers focused on private law. Their works laid the foundations for the theory of civil law - civil law. Resolving disputes over civil affairs, lawyers differentiated the types of transactions, developed formulas for claims, determined the powers of the owner and other subjects of law.
Roman jurisprudence turned to the study of public law in the 1st-2nd centuries, when jurists, who received the privilege of official interpretation of the law, came out in support of the imperial regime. In public law, they carried out the idea of unlimited powers of the princeps, the transfer of legislative power to him.
As a result of the reception of Roman private law, its principles were adopted by theoretical jurisprudence in many countries of continental Europe. Under the influence of Roman civil law, classical legal doctrines of the 18th-19th centuries developed, giving the owner the absolute right to dispose of the thing belonging to him at his own discretion.
Discovery in the 11th century. manuscripts Digest of Justinian gave rise to the study of Roman law in the universities of Northern Italy, and then in other cities of Western Europe. In the XI-XII centuries. developed in Bologna glossator school who studied and taught Roman law("glossa" - remark, explanation).
In the dispute between the emperors and the Church, the legalists-glossators took the side of the secular authorities. Most legists (lawyers) argued that the people transferred to the emperors all power, which is unlimited and hereditary. Referring to the laws of the Roman Empire, where the will of the emperors was considered the highest law, the legists considered the main source of law to be the laws established by the secular power of emperors, kings, and cities.
Similar ideas from the XIV century. substantiated postglossators, commentators who applied the rules of scholastic logic to the processing of material collected by the glossators. Some lawyers of the Middle Ages considered freedom a natural right, and slavery a product of violence.
The most prominent postglossator was the Italian professor Bartol de Saxoferrato, after whom the postglossators were called "bartholists". They continued the development of legal science, the beginning of which was laid by the glossators. The glossators and post-glossators not only studied and taught the letter of Roman law, but also sought to generalize and systematize legal concepts, to combine or harmonize the main provisions of Roman law with the concepts of contemporary canonical, urban, customary law. However, the application of scholastic methods to the study of law often led to the emptyness and verbosity of commentators, their separation from the practice of research and implementation of law.
The legalist defense of the independence of secular power irritated the Catholic Church, which forbade the clergy to study Roman law, as well as teaching it at the University of Paris. In contrast to the legalist schools in the 12th century. was created school of canonists who systematized papal decrees and bulls, decisions of church councils, statements of the church fathers, provisions of the Bible. They identified natural law with the divine law set forth in the sacred books, and considered custom to be the only source of human law. The canonists approved of the old decisions of the synods (ninth century), which strictly forbade bishops and abbots from granting freedom to slaves or ordaining them to the priesthood. Canonists threatened anathema against those who encouraged slaves to flee or helped runaway slaves.
In the Middle Ages, with the emergence in the XII century. Italy University of Bologna criminal law was taught, but not as an independent scientific discipline, but as an integral part of canonical and Roman law. The interpretation of criminal law norms was carried out by glossators, who did not develop, but only commented on the norms of canonical and Roman law. In general, the criminal law of the Middle Ages was completely dependent on the church. The glossators gave in a generalized form previously expressed opinions on a particular issue of criminal law, and also explained the main provisions of customary law. The commentator's comprehension of the issues of criminal law made it an independent academic discipline, and at the very beginning of the 15th century. in Venice, Albert Gindin's book "Treatise on Crimes" is published, which is a discourse on the nature of certain crimes in criminal proceedings. This book also contains an exposition individual issues of the general part of criminal law: intent, negligence, attempt. The glossator direction existed until the middle of the 18th century.
Among the numerous representatives of the glossator trend, treatises in the field of criminal law by the Italian Farinautsi and the Germans Karptsov and Berlich deserve special attention. The merit of these authors lies in the fact that although they did not develop the systematic foundations of the science of criminal law, they considered many issues of the general part of criminal law in relation to specific cases. judicial practice. Karptsov until the middle of the 18th century was considered the greatest authority and the father of the German science of criminal law. The works on criminal law of this period should also include the so-called advisory opinions of law faculties of the 17th century. in Germany, which played a great practical role, especially in the form of published collections of decisions. The conclusions of the University of Tübingen are of the greatest scientific value.
Glossatory jurisprudence had a certain influence on the criminal legislation of the Holy Roman Empire, in particular, on such an important legislative act in the 16th century, containing issues of criminal law and criminal justice, as Carolina (adopted in 1532). The merit of the glossators in the field of the development of the science of criminal law was that they, to a large extent and with greater breadth than the Roman lawyers, developed questions of both the general and the special part of criminal law; such as corpus delicti, attempt, intent and negligence, case, age criminal liability and the impact on her of mental illness, intoxication, types of punishments and types of specific crimes. In this way they contributed to the further development of the science of criminal law.
At the beginning renaissance, XVI century. the legal and political foundations of civil society were outlined. First, the idea of natural, moral, legal, religious equality of people was affirmed, the idea underlying both new political and legal concepts and mass religious and political movements. Secondly, after a break of almost a thousand and a half years, the state was seen as a social phenomenon, not only independent in relation to religion and the church, but even having superiority over them. The main prerequisite for the necessity and activity of the state was taken as "the nature of man", his inclinations and interests. Law was logically derived from this premise, considered in connection with the interests of people, their relationships, history and the natural environment.
Among the jurists of that era, Machiavelli is the most significant. However, his work is not aimed at overcoming political alienation, but at its justification. One can interpret the concept of a mixed republic as the idea of protecting civil society from the arbitrary rule of a tyrant; but the power itself in any form and any manifestation is considered as something fundamentally separated from society, at least by those special rules that it should be guided by when pursuing a policy. Campanella, whose ideas in all respects differed from the views of Machiavelli, agrees with him in determining the forms and degree of participation of the people in government: the people in the City of the Sun still do not determine policy, but rather only evaluate it.
The main result of the XVII century. in the ideology of Western Europe became formation of natural law theory which expressed the basic principles of civil society. In the theory of natural law, the ideas of the 16th century were developed. about the nature of man, his passions and reason as the basis and driving forces of politics. A significant achievement and basis of the theory of natural law of the XVII century. - the idea of universal natural equality of people.
The rationalist approach to the state, attempts to use the categories of private law to explain the reasons for its emergence and existence introduced into legal science not only the main idea of the social contract, but also the category of the natural state, promising for the subsequent study of the pre-state history of mankind, as well as the problem of mutual rights and obligations of power and people.
In the legal ideology of Western Europe in the 17th century. in essence, a model of civil society was formed and theoretically substantiated, the practical implementation of which took several centuries and is far from being completed on the scale of mankind.
At the end of the 17th century, a list of natural human rights and freedoms was substantiated, which became a classic for the next era. At the same time, the main ways of realizing these rights and freedoms in civil society were theoretically outlined. The development of the problem of protecting a person from state power led to the idea of a legal and democratic state, posing the question of material guarantees of rights and freedoms, protecting a person from hunger and poverty gave rise to the idea of a welfare state.
G. Grotius he was the first to substantiate the view of law as a human right, a reasonable right, without which there is no person at all. From the pessimistic views of Hobbes on the nature of man, the fundamental alienation of the state from the people was logically derived. However, in his concept, not only the most seemingly anti-social passions of people were considered natural and logical, but also within the framework of the complete political alienation of the individual, dignity, freedom and equality in relations with their own kind were recognized for the latter. In essence, Hobbes describes a civil society protected by an authoritarian government (Stuarts or Cromwell). There are no contradictions in this theory, although state-legal practice often became contradictory, considering the arbitrary will of the sovereign as the source of law, but trying to prescribe the rules of natural laws to this will. Often, the sovereign's response to these attempts was deeds and judgments: "Better a drop of strength than a bag of rights." The desire to overcome such a purely practical contradiction is noticeable in the theory of Spinoza, who identified law and force, as well as in Locke's concept, according to which the freedom and equality of citizens are prescribed to the state by nature itself.
D. Locke the variant of overcoming political alienation was identified, which consists in replacing the traditional sovereign power of the state over society and the people with the sovereignty of law. As a necessary means of ensuring the rule of law, based on human rights given by nature, the weakening of the state itself (separation of powers) was justified. As a result, the state turned out to be subordinate to the unshakable principles of law, and the law itself, from the decrees of power, turned into a stable basis for a society of equal and free owners before the law.
Another option for overcoming political alienation was proposed B. Spinoza: as soon as the state is generated by the contradiction between the passions and the mind of people, then the whole task is to ensure that both people and the state are led by reason. This is achieved by the democratic structure of the state, in which it actually merges with the people and, remaining a force isolated from society, embodying a reasonable general will, ceases to be alien and dangerous to society and the people.
The Age of Enlightenment awakened criminal law thought aimed at fundamental changes in the field of criminal and criminal procedure legislation and based on the requirements of reason, humanity and new political ideals. Outstanding philosophers and lawyers: Locke, Rousseau, Montesquieu, Voltaire, Puffendorf, Thomasius, Wolf and others, relying on the ideas of natural law, put forward criminal law requirements dictated by the rational nature of man. For example, the outstanding English philosopher John Locke attributed freedom and equality to innate and natural human rights. "Grievances and crimes," he wrote, "are equal whether they are committed by the bearer of the crown or by some insignificant peasant." The rank of the criminal and the number of his close associates does not mean a difference; it does not mean a difference in a crime, unless it aggravates him. Locke also demanded proportionality between the severity of the punishment and the severity of the crime, which was subsequently developed C. Beccaria. Locke drew attention to the fact that even in the state of nature, one person can punish another not arbitrarily, “but reward him in the way that a calm mind and conscience dictates, in proportion to his act.” He extended the same principle to relations between people in the state.
D. Locke also argued that only the law can be a measure of right and wrong, and only from the law can everyone know what is due to him. In other words, the law itself determines what is criminal and what punishments can be applied to the criminal. According to Locke, an important task of the criminal law should be the protection of private property. In France of this period, advanced criminal law ideas were put forward in the works of Montesquieu, Voltaire, Brissot and Beccaria. The main criminal law ideas of Montesquieu, the founder educational and humanistic direction in criminal law, expressed in his famous book "On the Spirit of the Laws" (1748) and can be reduced to the following basic principles: the punishment must correspond to the nature of the crime; punishment in its size should not exceed the requirements of necessity. The last provision contains the germ of the principle of economy of repression. The enlightening and humanistic direction in criminal law was expressed in the most distinct and complete form in the famous book of C. Beccaria "On Crime and Punishment".
The ideas of the educational and humanistic trend formed the basis of European criminal law systems, in particular, they were reflected in the French criminal code of 1810. classical direction in criminal law, the brightest representatives of which were A. Feuerbach, G. Styubel and K. Grolman. The classical direction in criminal law focused mainly on crime and punishment in isolation of these phenomena from social reality itself. In the second half of the 19th century, there anthropological direction, subjected to severe attacks of the classics. Representatives of this trend paid serious attention to the need to study the personality of the offender and the causes of crime. In the works of representatives of this trend, C. Lombroso, E. Ferri, F. Liszt, G. Tarde, Prince, and others, ideas were developed that combined positive aspects with negative ones.
With research I. Kant the value approach to law and to man is connected. Of course, Kant's specific legal views did not go beyond the limits of his era, and even then they could not be considered the most radical. The formalism of his legal theory subsequently served as the methodological basis of normativism and some positivist schools. Nevertheless, the ethical approach to law developed by Kant has the most direct relation to the problems of axiology.
No less strong is Kant's influence on the development of the ideas of the rule of law. Much has been said about the utopianism of Kant's dream of "eternal peace", but the realization of this dream in our time has become an urgent necessity, a condition for the survival of mankind. Kant's notorious reformism and his condemnation of revolutions are not fully comprehended either. Are his judgments about the stupidity of governments slowing down the implementation of overdue reforms, which gives rise to the bloody chaos of revolutions, really sound so opportunistic?
In philosophy G. Hegel there was a contradiction between Hegel's dialectic and the system of his philosophy, constructed in such a way that it, as it were, completes all development with a very moderate political ideal of an English-style constitutional monarchy with the preservation of a number of Prussian institutions. With all the richness of the content, "Philosophy of Law" (the doctrine of the objective spirit) is not the best part of Hegelian philosophy; the moderate political views of the great philosopher are expressed too thoroughly and concretely in it. But it is also true that Hegel’s famous proposition “what is reasonable is real, and what is real is reasonable” prefaced by the whole content of the “Philosophy of Right” provides grounds not only for conservative, but also for progressive conclusions.
Hegel solved the problem of political alienation more speculatively than in real terms. This problem was considered within the concept of the transition of self-consciousness into other being, which is a "thingness", objectivity. Examples of such a transition in the process of socio-political activity and labor are the state and private property ("wealth"). But Hegel himself did not consider them a manifestation of alienation hostile to people; this alienation is overcome in consciousness by reconciliation with reasonable reality. "The rational purpose of a person is to live in a state ... An individual is only true and moral insofar as he is a member of the state." The purpose of the state is not to ensure the interests of individual people, their lives, property and personal freedom. Rather, on the contrary, the state is that highest which claims also this very life and this very property, and demands from the individual that he sacrifice them. The state is "the absolute immovable end in itself, in which freedom attains its highest right, just as this end in itself has the highest right in relation to the individual, whose highest duty is to be a member of the state."
History itself, in the understanding of Hegel, is the introduction and penetration of the principle of freedom into worldly relations. The government and the state were not rationally organized right away; for many centuries they were not based on the principle of freedom. In the context of Hegelian philosophy, the view of history as the pace of freedom contains the statement of the most important problem: can a person be free among non-free political and public institutions?
His view of the state as the embodiment of public interest (as opposed to the egoism of civil society) became the main idea of the theorist of social democracy F. Lassalle. It is also difficult to recognize as accidental that the adherents of the most radical variant of overcoming political alienation - prominent theoreticians of anarchism (Proudhon, Stirner, Bakunin) and supporters of the idea of the withering away of the state (Marx, Engels) went through the school of Hegelian philosophy, were Hegelians of the left direction.
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Introduction
The study of the main forms, categories, criteria and methods of scientific knowledge today is more relevant than ever.
Modern science is developing at a very fast pace, at present the volume of scientific knowledge is doubling every 10-15 years. About 90% of all scientists who have ever lived on Earth are our contemporaries.
For some 300 years, namely such an age of modern science, mankind has made such a huge breakthrough that our ancestors did not even dream of (about 90% of all scientific and technological achievements were made in our time). The whole world around us shows what progress humanity has made. It was science that came main reason such a rapidly flowing scientific and technological revolution, the transition to a post-industrial society, the widespread introduction information technologies, the emergence of a "new economy", for which the laws of classical economic theory, the beginning of the transfer of human knowledge into an electronic form, so convenient for storage, systematization, search and processing.
All this convincingly proves that the main form of human knowledge - science in our days is becoming more and more significant and essential part of reality.
However, science would not be so productive if it did not have such a developed system of methods, principles and imperatives of knowledge inherent in it. It is the correctly chosen method, along with the talent of a scientist, that helps him to understand the deep connection of phenomena, reveal their essence, discover laws and patterns. The number of methods that science develops to understand reality is constantly increasing. Their exact number is perhaps difficult to determine. After all, there are about 15,000 sciences in the world, and each of them has its own specific methods and subject of research.
The main purpose of this work is: the study of legal types of scientific knowledge.
Legal types of scientific knowledge
Ordinary knowledge provides knowledge for orientation in the surrounding world. On its basis, material for scientific knowledge is accumulated. It is subjective and arises as a result of scientific activity.
Social institution (people and relations between them);
Specific cognitive activity (cognition);
Specific knowledge (physics, etc.). Gorbachev V.V. Concepts modern natural science. M.: MGUP, 2001. - 243 p.
Science is a system of theoretical knowledge, theory arises on the basis of generalization of knowledge.
Method - a set of actions designed to help achieve the desired results.
As for the methods of science, there may be several reasons for their division into groups. So, depending on the role and place in the process of scientific knowledge, one can single out formal and substantive, empirical and theoretical methods, methods of research and presentation, etc. There are also qualitative and quantitative methods, methods of direct and indirect knowledge, original and derivative, etc.
AT modern science The multilevel concept of methodological knowledge works quite successfully. In this regard, all methods of scientific knowledge can be divided into five main groups according to the degree of generality and scope of action:
1. Philosophical methods, among which the most ancient are dialectical and metaphysical. But philosophical methods are not limited to the two named. They also include analytical (characteristic of modern analytical philosophy), intuitive, phenomenological, hermeneutic (understanding), etc. Attempts are being made to combine different methods (for example, Gadamer tries to combine hermeneutics with rationalistic dialectics).
2. General scientific approaches and research methods that have been widely developed and applied in science in the 20th century. They act as a kind of intermediate methodology between philosophy and the fundamental theoretical and methodological provisions of the special sciences. General scientific most often include such concepts as information, model, isomorphism, structure, function, system, element, optimality, etc.
3. Private-scientific methods, i.e. a set of methods, principles of cognition, research methods and procedures used in a particular branch of science, corresponding to a given basic form of the movement of matter. These are the methods of mechanics, physics, chemistry, biology and the humanities (social) sciences.
4. Disciplinary methods, i.e. systems of techniques used in a particular discipline that is part of some branch of science or that arose at the intersection of sciences. Each fundamental science is a complex of disciplines that have their own specific subject and their own unique research methods.
5.Methods of interdisciplinary research as a set of a number of synthetic, integrative methods (resulting from a combination of elements of different levels of methodology), aimed mainly at the intersection of scientific disciplines. Grandmothers A.N. Modern concepts of natural science: Lectures. St. Petersburg: Publishing house "Lan", 2002. - 224 p.
Thus, in scientific knowledge there is a complex, dynamic, integral, subordinated system of diverse methods of different levels, spheres of action, orientation, etc., which are always implemented taking into account specific conditions.
Let us briefly consider some of the methods, techniques and means of scientific research used at its various stages and levels.
The scientific methods of empirical research are observation - a purposeful perception of the phenomena of reality (associated with their description and measurement), comparison and experiment, where there is an active intervention in the course of the studied processes.
Among the scientific methods of theoretical research, formalization, axiomatic and hypothetical-deductive methods are most often singled out.
1. Formalization - the display of meaningful knowledge in sign formalism (formalized language). The latter is created to accurately express thoughts in order to exclude the possibility of ambiguous understanding. When formalizing, reasoning about objects is transferred to the plane of operating with signs (formulas). The relations of signs replace statements about the properties and relations of objects. Formalization plays an essential role in clarifying scientific concepts. It can be carried out with varying degrees of completeness, but, as Gödel showed, there will always be an unformalizable remainder in a theory, i.e., no theory can be completely formalized. The formal method, even if it is carried out consistently, does not cover all the problems of the logic of scientific knowledge (which the logical positivists hoped for).
2. Axiomatic method - a method of constructing a scientific theory, in which it is based on some initial provisions - axioms (postulates), from which all other statements of this theory are derived from them in a purely logical way, through proof.
3. Hypothetical-deductive method - a method of theoretical research, the essence of which is to create a system of deductively interconnected hypotheses, from which statements about empirical facts are ultimately derived. Thus, this method is based on the derivation (deduction) of conclusions from hypotheses and other premises, the truth value of which is unknown. And this means that the conclusion obtained on the basis of this method will inevitably have only a probabilistic character. Dubnishcheva T.Ya. Concepts of modern natural science. Novosibirsk: UKEA. 2001. - 832 p.
Usually, the hypothetical-deductive method is associated with a system of hypotheses of different levels of generality and different proximity to the empirical basis. This method is focused on describing, first of all, the formal structure of "ready-made knowledge" and its forms in abstraction from their genesis and development. A variation of the hypothetical-deductive method is the method of mathematical hypothesis.
In scientific research, the so-called general logical methods and research techniques are widely used. Among them are the following:
Analysis is the real or mental division of an object into its component parts, and synthesis is their unification into a single whole.
Abstraction is the process of abstraction from a number of properties and relations of the phenomenon under study with the simultaneous selection of properties of interest to the researcher.
Idealization is a mental procedure associated with the formation of abstract (idealized) objects that are fundamentally unrealizable in reality (“point”, “ideal gas”, “absolutely black body" etc.).
These objects are not "pure fictions", but a very complex, but very indirect expression of real processes. They represent some limiting cases of the latter, serve as a means of analyzing them and constructing theoretical ideas about them. Idealization is closely related to abstraction and thought experiment.
Induction - the movement of thought from the individual (experience, facts) to the general (their generalization in the conclusions) and deduction - the ascent of the process of cognition from the general to the individual.
Analogy (corresponding, similarity) - the establishment of similarities in some aspects, properties and relationships between non-identical objects. On the basis of the revealed similarity, an appropriate conclusion is made - a conclusion by analogy. Its general scheme: object B has features a, c, c, e; object C It has features c, c, e; therefore, the object C probably has the attribute a. Thus, analogy provides not reliable, but probable knowledge.
Modeling is a method of studying certain objects by reproducing their characteristics on another object - a model that is an analogue of one or another fragment of reality (real or mental) - the original model. Between the model and the object of interest to the researcher, there must be a known similarity (similarity) - in physical characteristics, structure, functions, etc.
Modeling forms are very diverse. For example, subject (physical) and symbolic. An important form of the latter is mathematical (computer) modeling. Gulyaev S.A., Zhukovsky V.M., Komov S.V. Fundamentals of natural science. Yekaterinburg: UralEcoCentre, 2000. - 560 p.
A systematic approach is a set of general scientific methodological principles (requirements), which are based on the consideration of objects as systems. These requirements include:
Identification of the dependence of each element on its place and functions in the system, taking into account the fact that the properties of the whole are not reducible to the sum of the properties of its elements;
Analysis of the extent to which the behavior of the system is due to both the characteristics of its individual elements and the properties of its structure;
Study of the mechanism of interaction between the system and the environment;
The study of the nature of the hierarchy inherent in this system;
Providing a comprehensive multi-aspect description of the system;
Consideration of the system as a dynamic, developing integrity. Ruzavin G.I. "Methodology of scientific research" M.: UNITY-DANA, 2001.- 312 p.
Conclusion
Cognition is a specific type of human activity aimed at comprehending the surrounding world and oneself in this world. The main features of scientific knowledge include:
1. The main task of scientific knowledge is the discovery of the objective laws of reality - natural, social (social), the laws of cognition itself, thinking;
2. The immediate goal and highest value of scientific knowledge is objective truth, comprehended mainly by rational means and methods, but, of course, not without the participation of living contemplation;
3. Science, to a greater extent than other forms of knowledge, is focused on being embodied in practice, being a "guide to action" for changing the surrounding reality and managing real processes, and others.
The main forms of scientific knowledge include: empirical, theoretical and production-technical.
Not a little an important factor The study of scientific knowledge is the definition of the main categories and criteria, namely: here the category is considered as a characteristic of the general (generic) properties of being, with the help of which it is divided in language and knowledge into headings that are not reducible to each other. One of the important distinctive qualities of scientific knowledge is its systematization. It is one of the criteria of scientific character.
Glossary
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New concepts |
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Citizen |
person belonging to legal basis to a certain state. According to their legal status, a citizen of a particular state differs from foreign citizens and stateless persons. Only citizens have political rights and freedoms. |
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Democracy |
the exercise of power by the people through elected plenipotentiaries or through a system of popular representation. |
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Legislature |
according to the theory of separation of powers, one of the three balancing powers in the state. It is a set of powers to issue laws, as well as a system of state bodies that exercise these powers. In democratic states, Z.v. can be carried out not only by special legislative bodies (parliaments, legislative bodies of the subjects of the federation), but also directly by the electoral corps through a referendum, and in some cases by executive authorities in the manner of delegated or emergency legislation. The constitutions of some modern states contain provisions that Z.v. belongs jointly to the monarch and parliament, or to the chambers of parliament and the head of state as an integral part of parliament. In absolute monarchies, it belongs exclusively to the monarch. |
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Constitution |
the fundamental law of the state, which has the highest legal force and determines the foundations of the state system, the organization of state power, the relationship between the citizen and the state. The constitution is one of the most important institutions of democracy. |
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1) in the theory of constitutional law, the entire population of a given state, forming a single socio-economic and political community, regardless of its division into any national communities (in the constitutional doctrine of a number of countries, including the Russian Federation, the expression "multinational people" is used) . In this sense, modern constitutions speak of N. as “the bearer of sovereignty and the only source of power” in the state (for example, clause 1, article 3 of the Constitution of the Russian Federation). The concept of "N." also means a national-cultural community isolated from others, which may not be associated with the territory of any state (in this case, the term “N.” is synonymous with the term “nation”, “ethnic community”); 2) the subject of the international legal system of the rights of peoples. N. for the first time became a generally recognized subject of international law in 1945 as a result of the enshrining in the UN Charter of the principle of “equality and self-determination of peoples” (see Self-determination of peoples principle). However, generally accepted the international community the concept of "N." still no. Not only in international legal literature, but also in ethnographic literature, discussions on this topic have been going on since the 19th century. Based on most definitions, this is a stable community of people historically established in a certain territory, differing from the rest in a single language, relatively stable features of culture and psyche, as well as an awareness of their unity and a fixed self-name. In practice, the concept of "N." in different cases it includes a tribe, a group of tribes, a nationality, an ethnic nation, a religious community, a linguistic community. |
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Nation (lat. natio - tribe, people) |
1) in the theory of law - a historical community of people, emerging in the process of forming a community of their territory, economic ties, language, some features of culture and character that make up its features. In some cases, a synonym for N. is the concept of "people"; 2) in the constitutional law of English and Romance-speaking countries - a term that usually has the meanings of "state", "society", "the totality of all citizens". |
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State body |
an organized part of the state mechanism, endowed with authority, competence and the necessary means to carry out the tasks facing the state in a particular area of guiding society. The organ of the state may be one official or a well-organized group of officials. |
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Organization |
association of two or more persons who are subjects of law. O. can acquire the rights of a legal entity (in the case of state registration in the manner prescribed by law). The absence of the rights of a legal entity in itself does not impede the activities of an association, provided that the members of an association do not violate the law. In the civil law of the Russian Federation, the term "O." often used as a synonym for the concept of "legal entity". In the Tax Code of the Russian Federation, O. means legal entities, formed in accordance with the legislation of the Russian Federation, as well as foreign legal entities, companies and other corporate entities with civil legal capacity and established in accordance with the legislation of foreign states, international organizations, their branches and representative offices established in the territory of the Russian Federation. |
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Human rights |
a system of principles, norms, rules and traditions of relations between people and the state, which provides the individual, firstly, with the opportunity to act at his own discretion (this part of the rights is usually called freedoms); secondly, to receive certain material, spiritual and other benefits (rights proper). In a narrow sense, the concept of "human rights" defines only those rights that are not granted, but only protected and guaranteed by the state. They are inherent in every person from birth and operate regardless of constitutional and legal consolidation and state borders. |
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1) in an objective sense, a system of generally binding social norms (rules of conduct) established by the state and provided by the power of its coercion (positive law) or arising from nature itself, the human mind; imperative standing above the state and the law (natural law). There are written (statutory, precedent) and ordinary, secular and religious, national and international P.. P. as a system is differentiated by branches of law, each of which has its own subject of regulation and has specific features (for example, civil law, constitutional law, seed law, labor law, criminal law), sub-sectors (copyright, inheritance law etc.), intersectoral complexes of legal norms (banking law, business law). In comparative law, P. is divided into legal systems("legal families"): Romano-Germanic (continental), Anglo-American, Muslim, traditional and socialist; 2) in subjective sense type and measure of possible behavior of a person, government agency, people, state or other subject (legal law). |
List of sources used
1. Grandmothers A.N. Modern concepts of natural science: Lectures. St. Petersburg: Publishing house "Lan", 2002. - 224 p.
2. Gorbachev V.V. Concepts of modern natural science. M.: MGUP, 2001. - 243 p.
3. Gulyaev S.A., Zhukovsky V.M., Komov S.V. Fundamentals of natural science. Yekaterinburg: UralEcoCentre, 2000. - 560 p.
4. Dubnishcheva T.Ya. Concepts of modern natural science. Novosibirsk: UKEA. 2001. - 832 p.
5. Kanke V.A. “Basic Philosophical Directions and Concepts of Science. Results of the 20th century. - M.: Logos, 2002.- 458 p.
6. Concepts of modern natural science. Under. Ed. Samygina S.M. Rostov-on-Don: Phoenix, 2001. - 448 p.
7. Ruzavin G.I. "Methodology of scientific research" M.: UNITI-DANA, 2001.- 312 p.
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Ideas and Meanings
Tatyana AGAFONOVA, Alexey MAMYCHEV, Vitaly POPOV
LEGAL RATIONALITY IN THE CONTEXT OF HISTORICAL EVOLUTION
The classical form of rational cognition of law is in crisis, currently there is a search for a post-non-classical methodology of legal reflection. Therefore, the analysis of evolution and state of the art legal thinking, prospects for its development.
The classical form of rational knowledge of the right endures its crisis. Nowadays a search of post non-classical methodology of a legal reflection is taking place. Therefore, the analysis of evolution and a current state of legal thinking, prospects of its development is actualized.
state, irrationality, thinking, law, rationality; state, irrationality, thinking, right, rationality.
The essence, content and significance of the phenomenon of "legal rationality" can be considered from the point of view of the evolution of the interaction of the irrational and the rational in the state-legal organization of society, in the knowledge of law and phenomena and processes interconnected with it. In this context, it is conditionally possible to distinguish three historical stages that reflect the epistemological development of legal knowledge.
In the Middle Ages, rational and irrational in the development of law and legal thinking were closely related to each other both in the doctrinal legal and in the ordinary legal sense. At the same time, it was assumed that rationality does not contradict law, but rather is supplemented by it (for example, in matters of faith, F. Aquinas argued that positive law is formed on the basis of the postulates of faith, and the legal order must take into account divine revelations). Thus, it was substantiated that “irrationality is not only not alien to law, but is extremely essential for it ...” (F. Neumann). At the same time, at the conceptual level, it was substantiated that law can be formally irrational if the mystical source of lawmaking is legally institutionalized.
Next - New time, in the context of which, with the development of the Cartesian type of thinking, an "insurmountable" barrier is being erected between the rational and the irrational. In public law practice, this was expressed in the principle of differentiation between normal and abnormal, the strategy of isolating madmen from normal people, in the predominance of reasonable grounds in the construction of social, political and legal order. However, this differentiation is manifested not only at the level of customary legal interaction, but also at the level of legal thinking. So, in the state-legal context, the dominant types of legal and political rationality are formed, within which some legal-political theories, doctrines are “realized” and others that do not fit, contradict these types of rationality, “collapse”.
Thus, at all levels of public law organization, there is a systemic opposition of true and false, methods of separation and rejection, which are based on “the opposition of reason and madness”, which forms a certain “type of separation that governs our will to knowledge”, outlining the “system exceptions (historical, subject to change, institutionally coercive system)”1.
AGAFONOVA Tatyana Petrovna - Candidate of Philological Sciences, Associate Professor; Department of State and Legal Disciplines, TSPU, Taganrog
MAMYCHEV Alexey Yurievich - Ph.D. in Law, Associate Professor; Head of the Department of State and Legal TSPU [email protected]
kPaOfPedOrVa VPiotliatlioylogii Vladimirovich - Doctor of Philological Sciences, Professor; Rector of TSPU rep [email protected]
1 Foucault M. The Order of Discourse // The Will to Truth: Beyond Knowledge, Power and Sexuality. Works of different years. - M., 1996, p. 53-55.
Here it should be recognized, following the philosopher and methodologist M. Foucault, that with the change of scientific paradigms, not only types of political and legal rationality change, but also forms of differentiation of true and false knowledge, methods of separating and excluding other types of knowledge, social practice as unreasonable, insane, irrational. “Great scientific mutations,” writes M. Foucault in his program lecture, “and can sometimes be read as the consequences of some discovery, but they can also be read as the result of the emergence of new forms of the will to truth ... such a will to knowledge that imposes on the cognizing subject (and in a sense, before any experience) a certain position, a certain view and a certain function.
The third period is the period of modernity, which begins with the fact that in the twentieth century. prerequisites are formed that allow us to speak of a close relationship between rational and irrational forms and practices of legal thinking. There is no doubt that the very formulation of this problem is the interaction of the rational and the irrational (or the return of this problematic to modernity)
It begins thanks to the postmodern trend in philosophical and legal analysis. Thus, according to the postmodern concept developed in the framework of philosophical and legal research, it is argued that society is in dire need of new forms of legal thinking, liberation from the rational-positivist, formal-legal view of rights and legal reality. This accentuation is caused, first of all, by the fact that in the cognition of legal reality there is a transition from the scientistic program of positivism to the anthropocentric2. In this case, it is argued that the social world is heterogeneous and multidimensional, unites perfect different types legal understanding, forms and methods of knowledge of law and perception of legal processes and events, various social sources and factors of legal development.
In legal theory, they begin to pay more attention to extralegal facts.
1 Ibid., p. 56.
2 Social anthropology of the law of modern society / under. ed. Doctor of Law, Prof. I.L. Chestnova. - St. Petersburg, 2006, p. four.
frames, secondary processes and phenomena, historical and ethno-cultural dominants, irrational and mystical foundations of law, dependence of the type of legal understanding on religious worldview, etc. It is also assumed that modern society is experiencing a "crisis of representation" due to the disappearance of traditional canons of truth and the emergence of positions according to which legal and political truth is understood as socially and contextually constructed judgments. In this perspective, it is noted that “legal reality is too diverse to be perceived and described using only one exclusive, and even more so imperative-normative, i.e., essentially, voluntaristic method. law, law, power, as outstanding phenomena of the world order, need a broader view of them, and, consequently, a more comprehensive consideration and coverage of all the nuances and all the originality inherent in each of their manifestations and each individual element.
The deteologization and desacralization of the power-legal structure, the leveling of spiritual, moral and other factors and dominants in the development of political and legal thinking formed the prerequisites for the development of such a phenomenon as state rationality. In this regard, Foucault’s judgment is correct that “the art of governing should not seek justification in transcendental laws, in a cosmological model, or in some kind of philosophical or moral ideal, it should derive the principles of its rationality from what constitutes the special reality of the state. These are the fundamental moments of the first state rationality”4.
The well-known theorist K. Schmit insisted on the same context of the formation of political and legal rationality, noting that “the state ^aa!) ... is an extremely single, concrete, time-conditioned phenomenon that should be dated from the epoch from the 16th to the 20th centuries. Christian eon and which came out of four ages,
3 Isaev I.A. Topos and nomos: the space of legal orders. - M., 2007, p. 9.
4 Foucault M. Intellectuals and power: selected political articles, speeches and interviews. Part 2. - M.: Praxis, 2005, p. 189.
from the Renaissance, Humanism, Reformation and Counter-Reformation; it is the neutralization of confessional civil war, as well as the specific achievement of Western rationalism, etc. The state is primarily a product of religious civil war, its overcoming through the neutralization and secularization of confessional fronts, i.e. deteologization"1.
Since that time, Foucault notes, the state begins to be interpreted as “something that exists for itself”, as a special rational entity. At the same time, it in itself, as well as state-legal relations in general, represents a certain order of things and a specific area of political knowledge. Moreover, Foucault insists, "political knowledge does not deal with the rights of the people and not with human or divine laws, but with the nature of the state, which must be governed." In turn, “the reason of the state does not refer either to the wisdom of God, or to the reason or strategies of the Sovereign. It correlates with the state, with its own nature and their own rationality. State rationality in this context is seen as a certain “art”, “that is, as a kind of technique that conforms to specific rational rules. These rules are not just about customs or traditions, they are about a certain rational knowledge”2.
Summarizing the methodological provisions of the Foucauldian doctrine, state rationality can be interpreted as a broad category, which in an integrative capacity expresses legal rationality, which organizes and maintains, with the help of external normative regulation, the existing order of the functioning of the state, the interaction of the state apparatus and society, the activities of other political and social institutions; political rationality, reflecting the dominant official ideologies and doctrines, as well as the form and technologies for the development of power relations in society (for example, the theory of contract in the Western
1 Cited. Cited from: Pivovarov Yu.S. Russian political tradition and modernity. - M., 2006, p. eleven.
2 Foucault M. Intellectuals and Power: Chosen
political articles, speeches and interviews. Part 1. - M., 2002, p. 366-367.
European legal thinking has become a leader not only in the organization of the institutional sphere and mental activity of subjects, but also acted as a theoretical imperative in the legal and political knowledge of social phenomena); social rationality, which reproduces certain types of dominant subjects, their interests and needs.
For example, in this context, the liberal democratic doctrine should be considered not only as a political and legal form of organizing social relations, not so much as a type of power-legal relations that is steadily reproduced in society, but also more as a specific type of legal and political rationality, which determines a certain form of mental activity of the people of this community. At the same time, liberal-democratic rationality proceeds in the political and economic dimension from the “rule of maximum economy”, and in the legal sphere - from the “rule of maximum subordination to the law”. These foundations of liberal rationality give rise to such a management technology, "the dominant principle of which is the principle of public interest: and in a way, 'quite naturally', that it deals with the problems of the population, which should be as numerous and active as possible.
To strengthen state power; consequently, health, fertility and hygiene without problems find their important place in “police science”3.
Thus, it should be summarized that one of the central issues modern theory knowledge of law represents the formation of post-non-classical rationality. At present, representatives of various types of legal thinking state the crisis of the idea of rationality, assuming, first of all, the loss of clear criteria for rational knowledge of legal reality and an adequate methodology for the socio-cultural study of various legal and political phenomena and processes. In this sense, rationalistic attitudes
3 Foucault M. Intellectuals and power: selected political articles, speeches and interviews. Part 3. - M., 2006., p. 152-153.
and the rationalistic worldview turned out to be within the framework of the entire scope of the contradictions of modern civilization, which involuntarily cast doubt on the very foundations of rational knowledge of legal reality1.
Legal rationality is currently experiencing a serious impact from various postmodern and irrational directions of perception and interpretation of law, various legal phenomena and events. All this causes the evolution of classical, formal legal rationality towards post-non-classical approaches. Obviously, the origins of this situation are associated with a radical change in the role and place of spiritual, ethno-cultural and other factors in the legal life of society, which sometimes cast doubt on the classical formal legal rationality. Of course, pluralism and rational ambiguity affect the worldview of modern researchers in different ways2 and contribute to
1 See more about this: Popov V.V., Shcheglov B.S. Theory of rationality (non-classical and post-non-classical approaches). - Rostov n / a, 2006.
2 See: Kozlihin I.Yu. On non-traditional approaches to law // Jurisprudence, 2006, No. 1; Grevtsov
Yu.I., Khokhlov E.B. About legal and dogmatic chimeras in modern Russian jurisprudence // Jurisprudence, 2006, No. 5.
understanding of rational opinion as going beyond the limits of scientific rationality, which is associated with logically closed constructions3.
Consequently, the concept of post-non-classical legal rationality should be based not only on rational forms of consciousness, cognition and knowledge, but also on rational knowledge of human action and behavior. In this regard, it is necessary to analyze the nature of social rationality, its place and significance in human life, considering its social value, studying its relationship and interaction with other forms of development of legal reality.
The study within which this article was written was carried out with the financial support of the Analytical Departmental Target Program "Development of the scientific potential of higher education" (2009-2010) of the Ministry of Education and Science Russian Federation. Project RNP.2.1.3.4842 "Methodological and logical-semantic foundations for the study of social contradiction and transition periods in the development of modern Russian society." Scientific supervisor of the project - Doctor of Philosophical Sciences, Professor V.V. Popov.
3 See: Chestnov I.L. Postclassical methodology in jurisprudence // Modern methods research in jurisprudence / ed. N.I. Matuzova and A.V. Malko. - Saratov, 2007.
CHAPTER 2. GENESIS OF LEGAL SCIENCE.§one. Periodization of the history of formation
scientific rationality
Science as a social institution, a form of culture and a specific type of cognitive activity arose in Europe in the 16th-17th centuries. as a result of the formation of a special form of knowledge and cognition - scientific rationalism and its emancipation from others - mythological, religious, philosophical forms of knowledge and cognition. The history of the formation of scientific rationalism is a complex non-linear process that connects periods of evolutionary accumulation of new knowledge and periods of revolutionary breakthroughs to new cognitive frontiers. It is possible to single out the main stages in the formation of scientific rationalism. The birth of a rationalist attitude is associated with the period of "axial time", i.e. 8th-5th centuries BC. Crystallization of scientific rationality in line with other forms of knowledge - mythology, religion, philosophy, designated as a proto-scientific stage in the development of rationalism, is carried out in the culture of the Ancient East, Ancient Greece, Ancient Rome, the Middle Ages, the Renaissance.
§2. The germs of legal science in culture
ancient eastern civilizations
Scientific rationality does not arise suddenly, from scratch. The history of rationalism originates in the culture of the Ancient Eastern civilizations - Ancient China, ancient india, ancient egypt, on the basis of which the first sprouts of a reasonable-rational cognitive strategy sprout. The beginnings of scientific knowledge are formed in the bosom of traditional - mythological culture. Mythology, as historically the earliest form of worldview, is formed as a result of the actualization of the figurative-emotional strategy for processing information about the world and is a system of emotionally colored images.
The mythological picture of the world found expression in the image of the "world tree", with the help of which the structure of the world was modeled, appearing as a hierarchically ordered cosmos, in which nature and society are parts of the cosmic whole. The dominant worldview of mythological man was cosmocentrism - a man felt himself an element of the cosmic whole, human life, conceived as a continuation of cosmic life, was dissolved in nature. On the basis of "imitation of nature" patterns of behavior and activity were formed. The very idea of relying on the authority of Nature was born as a result of the underdevelopment of reflection, analytical, rational, cause-and-effect thinking. The main way to develop behavioral strategies was observation, accumulation of information about the environment, pulsation intervals of biocosmic rhythms, memorization of the most successful methods of activity. The sphere of generalization and consolidation of the accumulated experience was ritual, which regulates all the diversity of human activity.
The most important characteristic of traditional mythological thinking is syncretism - the indivisibility of various kinds of ideas, including the indivisibility of ideas about man and the world, which excludes the very possibility of a subject-object relationship of man to the world. The traditionalist strategy of being is a strategy of adaptation to existing natural and socio-historical conditions. An integral part of the traditional mythological culture is the sacred attitude to the myth, excluding any attempts to critically rethink the existing sacred mythologemes. Traditional culture is unscientific, its main principle is the principle of submission to the authority of tradition, therefore, it excludes innovations, there is no order for new technologies in it. Nevertheless, it is within the framework of traditional culture that the first shoots of rationality and protoscience are formed. It is obvious that scientific rationalism is fundamentally different from mythological forms of cognition, therefore it is born not so much as a result of the complication or quantitative growth of mythological representations, but as a result of a qualitative leap, the actualization of a fundamentally new strategy for processing cognitive information. This kind of qualitative leap, a breakthrough to new form thinking was due to a vital necessity - the counterproductiveness of the existing forms of life and the need to create new, more efficient ones. Obviously, a significant role in the development of rationalism was played by everyday knowledge, within which rational cognitive strategies develop and become more complex. It is in the space of everyday knowledge that a special, utilitarian (from the standpoint of utility, benefit) type of attitude towards the world as a means is activated. A utilitarian, but not sacred attitude to the world becomes the most important condition for overcoming the limitations of traditional mythological thinking. Utilitarianism is a way of depressurization of syncretic thinking, which operates with undivided ideas. Within the framework of the utilitarian, object-thing perception of reality, the dismemberment inherent in the mythological culture of non-subjectivity takes place, the subject-object relationship of a person to the world around is formed. The process of “disenchantment” of the world begins, naturally arising from the object-thing relation to it. Turning into a means, a thing for a person, the world ceases to be a “thing in itself”. A tendency is born to explain the world from itself, and not with the help of references to the Gods, otherworldly forces. From this logically follows a typically utilitarian way of practical, rather than magical, influence on the world. Thus, the utilitarian interpretation of reality turns the world into the subject of human analytical reflections, during which the isolation and evaluation of its individual elements is carried out.
Utilitarianism is the forerunner of rationalism: its most important mission is to discredit mythological, figurative-emotional thinking and prepare the ground for critical, rational thinking. Appears to be utilitarian common sense is historically the earliest form of rational comprehension of the world, the stage of rationalization of thinking.
As for rationalism as such, the period of "axial time" is considered to be the date of its birth. The concept of "axial time" is introduced by Karl Jaspers. Under the axis of world history, he understands the spiritual process that took place between 800 and 200 years. BC. At that time, Confucius and Lao Tzu lived in China, all directions of Chinese philosophy arose, Buddha lived in India and the Upanishads arose, Zarathustra preached in Iran, ancient Jewish prophets spoke in Palestine, Homer, Parmenides, Heraclitus, Plato worked in Greece. "Axial time", according to Jaspers, is the time of the appearance of a person of the type that has survived to this day, namely, a reflective person. Reflection, according to Jaspers, is a special ability - the ability of thinking to make thinking its object, the ability of consciousness to become aware of consciousness. “Axial time”, according to Jaspers, marks the end of the dominance of mythological thinking: “The mythological era with its calm stability has come to an end ... The struggle of rationality and rationally verified experience against myth (logos against myth) has begun ...” (1).
Of course, the actualization of rational-rational thinking did not mean the birth of science; to single out science as a special form of culture, a sphere of social consciousness and a way of knowing the world, the following were necessary: the accumulation of a significant amount of knowledge, the acquisition of specific skills, the institutionalization of scientific activity, etc. In relation to the civilizations of the Ancient East, it is premature to talk about science as such - here there was proto-science, which was woven into mythological forms of knowledge. This fully applies to legal knowledge. The rudiments of legal scientific knowledge are formed as a result of the development of reflection on existing political and legal relations, but the explanatory structures built as a result of this kind of reflection contain a significant proportion of mythological meanings. In particular, the leading explanatory principle is the principle of cosmocentrism inherent in the whole mythological worldview. Within the framework of the cosmocentric worldview, the earthly order - the microcosm - was considered as a reflection of the global cosmic order - the macrocosm. Law and the state in such a semantic context were presented as external in relation to a person, given from above by force. The mythological interpretation of law and the state is inherent in the political and legal culture of the Ancient Eastern civilizations, they are, to one degree or another, reflected in the Laws of Hammurabi, the Laws of Manu, Zoroastrianism, Taoism, Confucianism, Buddhism.
For example, in the Laws of Manu - an ancient Indian political and legal monument - the eternal cosmic law and human law are combined through the concept of "dharma". Dharma is understood simultaneously as the law of nature, moral law, customary law and positive law.
Even more convex is this connection between heavenly and earthly orders in the ancient Chinese religious and philosophical doctrine of Taoism, where Tao is understood as the natural course of things, a natural pattern that determines the laws of heaven, nature and society, personifying the highest virtue and natural justice.
It should be noted that in traditional culture law appears not so much as a legal, but as a moral phenomenon. Such an understanding of law is based on the opposition of a genuine law given by the cosmos and a law created by man, which qualifies as a distortion of cosmic laws. Positive law, in this context, appears at worst as a surrogate, and at best as a secondary and transient phenomenon. Positive law is opposed to natural law, understood in a special way - as moral prescriptions given by the Cosmos.
A clear illustration of such an understanding of law is Confucianism, which opposes customary law, ritual (li) as a reflection of heavenly law, positive laws (fa), as genuine to false. Confucius stated: “If you lead the people through laws and maintain order with the help of punishments, the people will seek to evade (punishments) and will not feel shame. If, however, to lead the people through virtue and maintain order through ritual, the people will know shame and it will be corrected.
The development of legal thought in the culture of the Ancient East can be represented as a process of gradual contraction of mythological ideas and expansion of rational ones and, accordingly, a change in attitude towards positive laws. Of course, we are talking only about a trend, but not a radical transformation.
Partial rationalization of ideas about law is carried out in Buddhism. In particular, the mythological interpretation of the key concept of the ancient Indian political and legal thought "dharma" (dhamma) as a universal cosmic law, Buddhism opposes its interpretation as a natural pattern, the understanding and application of which requires mental efforts. The Dhammapada states: “Dhammas are conditioned by the mind, their best part is the mind, from the mind they are created ...”
This movement from a mythological understanding of law to a rational one is even more noticeable in the treatise "Arthashastra"(IV-III centuries BC), the author of which is considered to be the ancient Indian thinker Kautilya (Chanakya). Along with dharma - the cosmic law, it stands out for artha - practical benefit, the benefit of people. At the same time, utility acts as the leading principle of political action and social interaction. One of the supporters of Kautilya's ideas, Medhatithi, a commentator on the Laws of Manu, argued that the ruler, in the event of a choice between following dharma and great losses for artha, must follow the second.
The most prominent transition from the mythological understanding of law to the rational one appears in the ancient Chinese political and legal doctrine of Moism. The founder of Moism, Mo-Tzu (479-400 BC), gives a new interpretation of the heavenly law - "the will of heaven", arguing that "heaven adheres to universal love and benefits everyone." Such an understanding of the will of heaven allows Mo Tzu to approach a new understanding of the state as a product of a social contract. Of course, Mo Tzu's contractivism can hardly be called consistent, since it is connected with the idea of the will of heaven. In particular, Mo-Tzu believed that in ancient times there was no control and punishment, and since everyone had their own understanding of justice, enmity reigned between people. The disorder in the Middle Kingdom was the same as among wild animals. Realizing that the cause of chaos is the lack of leadership and seniority, people chose the most virtuous and wise man under heaven and made him a son of heaven. Only the son of heaven can create a single model of justice in the Celestial Empire, so order reigned in the Celestial Empire. Mo-Tzu puts forward the important idea of belonging to the people of supreme power, and also, referring to the inherent sky, which plays the role of a model and model for human relationships in Moism, universality, insists on recognizing the equality of all people. It is the interpretation of the will of heaven that allows Mo Tzu to put forward the requirement to take into account the interests of the common people in the process of governing the state.
The culminating point in the process of rationalization of ideas about law can be called the teaching of ancient Chinese legalism. Shang Yang (390–338 BC), one of the theorists of legalism and the founders of the school of “lawyers” (fajia), criticized the Confucian ideals of governance through customary law - ritual, he believed that people holding such views can only observe the laws, but they are not able to discuss issues that go beyond the old laws. In Shang Yang's vision, management should be based on positive laws (fa) - "The wise create laws, and the stupid are limited by them." Of course, the concept of legalism can hardly be called humanistic, since the ideal of a “legalistic” state is alien to the notion of any rights of subjects under the law, of the obligation of the law for everyone, including those who publish them. The law within the framework of legalism acts as an order form, which can be filled with any arbitrary content and provided with any sanction. Nevertheless, in fact, in legalism, the law appears not so much as the will of heaven, but as the will of the ruler.
Summing up, we can state that, despite the visible positive dynamics of scientific rationalism in the culture of the Ancient East, it does not acquire independence and exists in the form of separate fragments against the background of generally mythological thinking.
§3. Legal thought in the culture of Ancient Greece
The culture of Ancient Greece is a culture in the depths of which the emancipation of rationalism as a specific form of knowledge is carried out. In ancient Greece, a number of factors are taking shape that determine the development of rationalism and its acquisition of the status of a special type of cognition.
First, these are specific natural conditions that are not conducive to the formation of an agrarian-type civilization. Greece develops commerce and handicraft production. The classes of merchants and artisans represent a serious economic and political force.
Secondly, it is the presence of democratic principles of social organization, which are implemented in the institution of the policy and create conditions for creative freedom and individual initiative. Individualism shook social foundations and made it necessary to constantly restore social ties with the help of one's own mind. Polis culture is not a culture of authority, but of an author (Knabe), it is a culture of dialogue, creative competition, competition, curiosity. The discussion acts as a way to solve political, social, economic problems. Agonistics - competitiveness - contributes to the promotion of free-thinking, secularization, rationalization of culture.
Thirdly, the development of ancient Greek rationalism was to some extent initiated by reasons of a religious nature. The religious culture of the ancient Greeks was distinguished, relatively speaking, by its “liberalism”: the ancient Greek gods, in fact, were idealized people; the Greeks did not have sacred books - fruits divine revelation; did not have a strictly fixed dogma; priests did not play a significant role in the life of the policy. The absence of rigid religious dogmas made the intellectual thought of Ancient Greece free, in contrast to the Ancient East, where dogmas formed a stable opposing force.
Fourthly, ancient Greek mythology bore the imprint of a democratic mentality, it was an example of highly artistic authorial creativity, its specific feature was attempts to explain events causally, as well as the presence of generalizing maxims, artistic metaphors, which can be considered as prototypes of philosophical and scientific concepts. .
So, the very life of the ancient Greek polis, based not on the dictates of tradition, but on dialogue and the reproduction of social consensus, contributed to the development of rationalistic thinking. A rationalistic attitude is formed under the pressure of utilitarian requirements - the development of trade, navigation, handicraft production gave rise to a feeling of dissatisfaction with mythological and magical ways of explaining the world and methods of influencing it. The rationalistic approach consisted in the desire to look in nature itself for the reasons for what is happening, thus refusing to appeal to otherworldly forces. At the same time, the rationalistic attitude differed from the ordinary one, since it did not imply a statement of facts in their everyday evidence, but a search for causes and foundations with the help of reason. This kind of epistemological revolution occurred, on the one hand, because a person ceased to be content with the authority of myth in understanding the world and set the task of understanding it himself, on the other hand, such a turn became possible as a result of developing the skills of thinking not only about objects, but also about thoughts, i.e. about thoughts. e. reflection skills.
The key lexeme used by the first ancient Greek philosophers is the lexeme "fusis", understood as nature, the internal structure of all things. Another most important category around which the ancient philosophical discourse is organized is the category of "arche" - the beginning. The search for the beginning, which acts as the cause and basis of natural and social phenomena and processes, testifies to the development of abstract thinking. Strictly speaking, the ability to see some single essence behind the diverse phenomena of life is born as a result of the ability to idealize the world - abstraction from its specific physical and mental characteristics. Thus, an exit was made to generalizing constructions based on evidence and a retreat from mythological ideas. In the intellectual culture of ancient Greece, ideas about various forms of knowledge are formed. Among them: doxa - ordinary knowledge; tehne – practical knowledge; math - knowledge gained in the learning process and aimed at the formation of ethical virtues; episteme - theoretical knowledge, a prototype of scientific knowledge; sophia - theoretical speculation. Education promoted the culture of rationalism. The ideal of Greek education was the free voluntary occupation of science. Education, the formation of a healthy spirit in a healthy body was designated by the term paideia. In ancient culture, there were ideas according to which literature, poetry, rhetoric, history and philosophy play a decisive role in shaping the spiritual nature of a person. In addition, elements of legal education appear in ancient Greece - some information about law was included in the general education system, and judicial eloquence was taught in Stoic schools.
The culture of Ancient Greece is the most important stage in the formation of legal science. This stage is associated with the transition from mythological to philosophical ideas, from figurative-emotional thinking to logical-conceptual analysis and rudimentary forms of empirical scientific knowledge.
Strictly speaking, initially the political and legal thought of Ancient Greece, like the ancient Eastern political and legal thought, was mythological. The first sprouts of political and legal thought are born in the poems of Homer and Hesiod. So, for example, in the poems of Hesiod (VII century BC) “Theogony” and “Works and Days”, the problems of the legal structure are solved by appealing to the following mythological plot: from the marriage of Zeus (the personification of everything perfect) and Themis (the personification of the eternal natural order), two goddess-daughters are born: Dike (justice) and Eunomia (good law). Dike guards natural-divine justice and punishes untruth. Eunomia, on the other hand, denotes the divine nature of the principles of lawfulness in the social structure, the deep inner connection between lawfulness and the polis structure.
Homer's poems are characterized by the transformation of mythological images into generalizing concepts, in particular Dike means for him not so much the name of a deity, but the principle of eternal justice.
Attempts to rationalize ideas about law, characteristic of Homer's poems, receive further development in the work of the first philosophers, for example, Pythagoras (580–500 BC) and his followers - Archytas, Lysis, Philolaus. As a basis and source of law, they determined the number. The idea of justice, thus, lost its mythological character and acquired a new rationalistic sound - as retribution to equals for equals.
Another step towards the rationalization of political and legal thought is the teaching of Heraclitus (VI-V centuries BC), who defines law as a product of the universal logos - the all-controlling mind. Heraclitus insists that the law of the polis is of a reasonable nature, it arises as a result of intellectual comprehension of the logos.
Fundamentally common to the approaches of Pythagoras and Heraclitus, which had a noticeable influence on subsequent thinkers (Socrates, Plato, etc.), is their choice of an intellectual (logical-philosophical, scientific-mathematical) criterion for determining what is law.
The turning point in the development of a rationalistic understanding of law is the work of the sophists, who spoke in the 5th century. BC. during the heyday of Athenian democracy. In Ancient Greece, teachers of political eloquence were called sophists - sages, who radically changed ideas about law and the state.
First, the sophists criticize the idea of the divine origin of law. For example, the sophist Critias called the gods effigies invented by politicians to force people to respect laws that would have no power in themselves.
Secondly, the sophists put forward the idea of utilitarianism - the conditionality of moral, legal norms of society's life for human benefit. For example, the sophist Thrasymachus considered justice as something that is useful to the authorities; any power, in his vision, establishes laws in his favor: democracy - democratic, tyranny - tyrannical.
Thirdly, the idea of utilitarianism among the sophists is inextricably linked with the idea of relativism - the relativity of existing moral and legal norms, their variability, fluidity.
Finally, fourthly, in the interpretation of legal norms, the sophists approach the anthropocentric understanding of law and the state, according to which the main source of law and the state is a person. The Sophist Protagoras (481-411 BC), for example, argued that laws were the invention of ancient legislators.
The rationalization of political and legal ideas in the work of the sophists is connected, first of all, with the transfer of the right to establish the norms of social life to a person. The definition of man as the measure of all things (Protagoras) opened up the possibility of a rational - analytical, and not sacred - apologetic attitude to existing law. It should be noted that a number of sophists introduce a distinction between the law of the policy (nomos) and the law of nature (fusis). Sophist Hypias (460-400 BC) contrasts the true natural law, which comes from the very nature of things, to the erroneous, artificial, polis law. Through an appeal to natural law, the sophist Antiphon (c. 400 BC) asserts the equality of men. It seems that the appeal to nature as an explanatory principle creates a precedent for the scientization of political and legal thought, as well as the contours of "nature-centrism" as a principle for understanding law. It should be noted that the essentially rationalistic idea of naturocentrism is radically different from the mythological idea of cosmocentrism: within the framework of naturocentrism, nature is understood as fusis - the internal structure and arche - the essence of things. Naturocentrism in the understanding of law is the assertion of a certain order that is authentic to the nature and essence of man. Thus, the sophists may not always be consistent, they depart from the cosmocentric idea of the deification of nature, the understanding of law as given by the Cosmos of a higher order. In general, the contribution of the sophists to the formation of legal science is difficult to overestimate: they proposed the division of law into natural and positive; based on the natural law theory laid the foundations of the modern theory of human rights; from the standpoint of natural law, they substantiated the axiom of the legal equality of people; substantiate the fact of the diversity of laws. However, the teachings of the sophists can hardly be qualified as a legal research program. The knowledge developed by the sophists was fragmentary and largely speculative. With regard to the teachings of the sophists, one can hardly speak of a holistic and complete conceptual scientific system, and even more so about its somewhat representative empirical base.
Something similar can be said about the teachings of Socrates (469-399 BC), who stands at the origins of the tradition of rational understanding of law. Like the sophists, Socrates distinguished between natural law and the laws of the polis, but unlike them, he believed that both natural law and the polis law have a reasonable basis. Socrates formulates the important idea of the identity of the reasonable, the just, and the lawful. By arguing that those who know should rule, Socrates, in fact, formulates the principle of competent government. Of course, the theoretical position of Socrates was far from the political order that existed in his time.
Plato (427–347 BC) is the creator of a holistic conceptual system of knowledge regarding the state and law. At the same time, Plato's concept is of a pronounced philosophical nature. The ideal state described by Plato in the dialogue "The State" belongs to the world of eidos - ideas. It can be realized in the world of things - earthly political and legal life, however, the ideal form of the state is primary and independent of people. Thus, according to Plato, the ideal image of the state is not extracted from empirical reality, but is constructed speculatively as a result of the speculatively perceived structural identity between the Universe as a whole, the human soul and the state. In the ideal state of Plato, rulers - philosophers rule "according to virtue and science."
In the dialogue "Laws" Plato makes an attempt to study the state as such, i.e. real state, consisting of real, but not ideal people. In reality, as Plato believes, it is difficult to find those who would rule “according to virtue and science”, therefore the real state differs from the ideal one, first of all, in that the law should be the bearer of the highest power, therefore, a constitution is necessary. And, nevertheless, the real state for Plato is only a distortion of the ideal, which acts as the main goal and value.
In the "Laws" Plato puts forward a number of important political and legal ideas - he creates a classification of the forms of government of the state depending on the number of rulers and their attitude to the laws, introduces the concepts of "mixed constitution" (the constitution means the form of the state) and "proportional equality". And, nevertheless, the teaching of Plato cannot be called concretely scientific, it is philosophical, i.e. based not so much on experiential as on super-experimental knowledge. Political and legal issues are covered by Plato from the standpoint of an ideal understanding of the state and law.
The pinnacle of the rationalization of ancient Greek political and legal thought is the teaching of Aristotle (384–322 BC). Aristotle is often called the founder of political science. One way or another, it was Aristotle who made the first attempt at a comprehensive development of the science of politics. He changed the form of presentation of political and legal ideas, unlike Plato, who expressed his views in a typically philosophical form of dialogue, Aristotle refers to the form of a treatise. The main work in which Aristotle expounds his views is the treatise Politics. In addition, in his studies of law and the state, Aristotle relies on a solid empirical base - his research was based on a comparative analysis of existing constitutions, he and his students described 158 constitutions of the Greek and barbarian states. The political and legal doctrine of Aristotle differs from the similar doctrine of Plato in greater concreteness and less speculation. This is largely due to Aristotle's notion that ideas do not exist outside of things, but only in themselves as forms of things. Every thing is a unity of matter and form. Thus, Aristotle overcomes the idealism and dualism inherent in Plato in understanding the state and law. The state, in the view of Aristotle, is the highest form of communication, embracing the primary forms of communication - the family, the community; it is created for the welfare of all.
The state in the teachings of Aristotle appears as a product of natural development. At the same time, the state corresponds to the very nature of man, who is a social and political being. Thus, in understanding the state, Aristotle stands on the positions of "sociocentrism", positioning society as the source of the state. Stagirite removes the touch of sacredness and spiritualism inherent in the Platonic understanding of the state. Aristotle carries out this kind of desacralization in relation to other political and legal concepts. He understands the law as a balancing reason of social life. Justice as a principle that creates and preserves the good (happiness) of society. Law as political justice, serving as the norm of political relations between people. Aristotle's legal understanding is based on the principle of the coincidence of the just and the lawful. Thus, Aristotle comes close to creating a science of law. He creates a number of important political and legal concepts, for example, the concepts of equalizing and distributing justice; carries out the classification of forms of government based on the criterion of the number of rulers and serving the interests of the common good; develops a project of an ideal form of government - polity. And, nevertheless, the teaching of Aristotle in its essence is knowledge, where philosophical and concrete-scientific rationalism are syncretically (inseparably) merged. In particular, ethics (ethics is a branch of philosophy) is defined by Aristotle as the beginning of politics and an introduction to it. The object of political science in Aristotle is beautiful and fair, i.e. the same objects that are studied by ethics as virtues. Aristotle gives an ethical understanding of the state as a community of equal people to achieve the best possible life.
In the Hellenistic period of the development of ancient culture, there was a decline in political and legal thought, associated with the crisis of ancient Greek statehood. The ideal of apoliticality, non-participation in public life is put forward by the schools of Epicureanism and Cynicism. Stoicism revives the inherently cosmocentric idea of a universal cosmic law that governs all things. The Stoics call it fate.
So, it is necessary to determine the specific features of ancient Greek rationalism. The most important of them is the orientation towards the construction of a theory, deductive constructions. Only the occupation of theoretical knowledge was considered by the ancient Greeks as worthy of a free citizen of the policy. Theoretical knowledge was opposed to experience and practical crafts (techne) as high to low. Another feature of ancient Greek rationalism was its syncretism - the indivisibility of philosophical and strictly scientific rationalism. The sprouts of particular sciences, for example, legal science, germinated and woven into philosophical knowledge, in this sense, we can say that the ancient Greeks, in fact, did not have separate "sciences", there was only one general "science" that was soldered with philosophical speculation, developed under the auspices of philosophy. Precisely because of the non-differentiation of philosophical and scientific knowledge, the ancient Greek "science" was not a science in the full sense of the word, it was a proto-scientific type of knowledge.
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