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§ 4. Evolution of the concept of the natural death in XVIH century


The most considerable achievement of an epoch of New time is Gottfrida Wilhelm Lejbnitsa3's is natural-legal thinking. According to Velygelja he has created the idealistic is natural-legal doctrine with lines of perfect cleanliness and логичности4.
Thus its early doctrine about the natural death carried on itself a nominalism print. Natural death Lejbnits has started to be interested at the age of 17 years, in particular Thomas Gobbs's in doctrine which has characterised as “over - nominalisga” 5. At that time it closely connected jurisprudence with theology and understood theology as a special kind of jurisprudence. Existence of the God
“E.V.decree's smiths. soch. With, 35.
' Malysheva N.I.decree. soch. With. 126-127.
^gottfrid Wilhelm background Lejbnits (1646-1716) was born in Leipzig in a family of the professor. C early age it was distinguished by surprising abilities in nachitannost. At the age of 15 years Lejbnits - the student of the Leipzig university, in! 7 years listen to lectures at Jejsky university. In 1667 after are sewn up the thesis for a doctor's degree arrives on service of the minister of of Mainz. In 1676 - on service at the prince in Hanover on purpose to write history of this dynasty. Keeps in touch with t «Russian and Viennese court yard. To the Prussian queen of Sofia Charlotte devotes large product“ Teoditseja ”, is the founder of the Berlin Academy of sciences. In 1714 creates“ Monadologiju ", become by a lime only after his death. (Aster, Ernst von Geschichte der Philosophic 17 erij Aufl, - StuttgartrKrcner, J9R0 S 245-24S) 4WeLcel Rt an an O S 145. sIbid. S. 146.является for it the definitive base of the natural death. Gobbs's thoughts are guessed in statement Lejbnitsa::" The will of the one who has naivyshtuju the power, also is a natural death source ”1. It develops the new views on a boundary of centuries during a fierce debate with Samuelem Pufendorfom. According to Вельцеля* Lejbnits criticises own former sights [83 [84] * neli omnipotences of nanosecond достаточно* to create право* that address to a tyranny principle, that is fair it is considered that is pleasant to the owner власти* it is necessary to assume, that the God is a malicious being, in this case the power It can transform into the right all the most bad, that contradicts our concepts about the natural death. Therefore it is necessary to search for the best legal principle and not so much in divine воле* how many in Its intelligence, and not in Its power, and in Its wisdom. The criterion of justice consists in the nature veshej and in eternal trues [85]. Justice of the God and justice of the person - identical concepts also differ only in degree. For this reason people can be assured that the power which corrects the world is kind, and nanosecond malicious as justice of the God is based on eternal and necessary trues of the nature of things [86],
Thus, on Lejbnitsu, the basic distinction of belief and understanding of the God consists in the following.
Lejbnits makes to the God certain demands, to which Its actions should correspond to be considered as the divine. The god is obliged under the justice law, hotoryj operates equally both for it, and for other people, to hold the word or not to damn the innocent. Criterion kind is the unchangeable rule of reason, to observe which God is obliged. Osnovnoeprotivorechie sights Lejbnitsa ts Pufendorfa who is reflected in Bonpoce1 more fairly: The one who trusts in assigned by a pas it the God and its sacred will a debt or the one who observes justice laws because they are based in the nature of things and in ideas of eternal trues as subjects divine интеллекта1* However historically natural death Lejbnitsa had no such influence, as doctrine Пуфендорфа* “considerably conceding to it on force of thinking” [87 [88] [89] which was a source for legal ideas of XVIII century.
Process sekuljarizatsii the natural death has been continued by follower Pufendorfa Hristianom Tomaziemg? Which it is definitive izmennil legal sights and denied legal character of the divine right ius divinum. In the core произведении* devoted to the natural death, “Fundamcnta juris naturae et gentium” it объясняет* that except the natural death and the positive law of the separate states, neither the eternal law lex aetema, nor the divine positive law ius divinum should not be a subject of jurisprudence [90] * the Right assigns only “an external duty” which is based on fear before compulsion of other people, in go as the morals and custom oblige time only internally. It,
Thus, deprives ssgsstnsshjus the right of legal quality and leaves to it value of "divine council” 1,
Pessimism in relation to obshchesgvetshomu to an order leads to its division of morals n the rights. The natural death for Tomazija ■ is compulsory порядок2. Gem most the system социалFjHoii ethics of the rational right as together with reguljativnoj idea of the social person from the natural death maintenance duties have disappeared has been destroyed and the finished system of the natural death became impossible. Norms of the natural death are not logic positions as in the mathematician, and the psychological ways of behaviour empirical, got or confirmed by means of EXPERIENCE индивидуумов*. Individualistic lines of the natural death have amplified. From the natural death of the person, but Pufendorfu, there was a natural death индивидуума4. This empiricism explains interest Tomazija to history. According to F.Vnakera, Tomazy is at absolutely new step “the European thinking and it is possible to name it the founder early историзма5. Its empiricism demands, that the positive law was reasonable to achieve practical conclusions for the state Policy of Law and to create the program of correct actions for improvement and a humanisation of justice and overcoming of belief in authorities of the Roman Law. It merits in struggle against tortures and burning of witches, the old become obsolete customs, in people education, in educational reform are highly appreciated. At the same time the new direction in a science about the right has resulted natural prano in deep crisis. This crisis was
' Baskin JUL. Freedom problem in Christian Tomazija's legal philosophy//Jurisprudence. 1999. №2. With. 34-3 «; E.B.decree's Smiths. soch. S« 8-B9. sWteacker F., and, and. O S, 190.
3Wieacker F., and, and About S. 190-191 4Mitteis H., and. And. About S. 24. sWieacker F, and. And. About S. 191
It is overcome by the philosopher of Education Hristianom Вольфом1, Its main product devoted to the natural death, - itJus naturae methodic® petractinn "(9 t., 1740-1749). The moral philosophy X, Volf concerns the general history of philosophy of the Enlightenment ', the Floor influence Pufendorfa it refuses division of the natural death and individual conscience. Its natural death is again the natural doctrine about duties, the doctrine about good and bad actions - Naturally - rules of law become statements about duties of the person and the citizen. Its efforts are directed on a concrete definition of a natural social ethics to an epoch of the educated monarchy in which relations between the prince and citizens were the mutual union for maintenance of advantage and prosperity of citizens. Thanking these concrete criteria Volf appears far outside of sotskalno-etichoskoj casuistries Pufendorfa. It has so pull together idea of the right and a positive law, 1ITO realisation of natural ethics in conditions positive legislations became possible, the Finished social picture of the General Code of laws is based on Volf's doctrine about обязанностяхt which became the state ethics Prussian educated absoljutizma - Not less Volf's scientific method thanks to which logic rationalism of the natural death reaches the highest point had great value; by means of deduction it is natural -
Christians Volf (1079-1754) - glavn German philosophy of Education, comes Breslau, in 1699 studied in Yen (under spiritual influence Pufendorfa n local late scholasticism). C 1703 taught in Leipzig the mathematics, philosophy and theology. C 1706 of veins in Halle, in 1717 has received a post of the ordinary professor. Soon after that has dismissed I will invite kie Peter I to Petersburg. In 1723 has been proscribed from the country Fridrihom by Wilhelm. I on charge of theological faculty also has left to Marburg where has won the European recognition. In 1733 Fridrih BjtTbJ tribM 1 tried to return it, but unsuccessfully. In 1740 has come back to a Prussian court yard at Fridrihe Great where has been accepted with the big honours.
^ieacker F., and. And About S 192 legal statuses from axioms are allocated all inductive and empirical elements with accuracy geometrical доказательства* This method was a basis for the Prussian legislation of end XVIIl века1.
X* Volf has made huge impact of a pas the subsequent generations of lawyers which during long time were true to its legal sights and regular требованиям* it is necessary to carry Ioahima George Daresa To its most considerable followers (1714-1791 [91] [92] [93]. Dares tries to develop the general German code of laws in the book “Institutlones jiirisprudentiae private romano-Germanicae” (1748). It was a step to "the historical natural death" which has drawn attention to "the German right” not because it is historical or national that is why, that it is practical and it is reasonable, Dares concerns representatives of an empirichesko-pragmatical direction late rational to the rights.
Volf's to belief and Tomazija remained Daniel Nettelbladt (17 9-1791) which tried to construct perfect system of norms of the higher and lowest order in spite of the fact that it attracted ozryv theories from practice, negggelbladt іребовал is true in (spirit X. Volf) demonstrations, т.е* proofs of the legal statuses connected with exact definitions. As marks F, Viaker, its contribution to science of law can be considered as attempt of creation of the general ontologii a positive law [94].У7
Volf's system dominated in German philosophy XVHI of a century to the Edging. In the to "the Critic of pure reason” the Edging criticised (with irony) its method: ”... At construction of the future system of metaphysics, we should follow the well-known Volf's strict method, greatest of all dogmatic philosophers who has set for the first time an example (and thanks to this example became a source till now yet the spirit which has died away in Germany of validity) that, how it is necessary to enter on a true way of a science with the help zakonosoobraznoju ustanovlennja principles, distinct definition of concepts, ispytanchoj sgrogoslch proofs and prevention of courageous jumps in выводах1,
Summing up to historical development of is natural-legal thought to the Edging, it is necessary to notice, that the considered concepts treated the natural death or as an obligatory part of the positive law, unlike changeable and its casual parts, or as a certain instance over the right положительным* operating with moral, rational or religious categories with a view of pozitivashi the standard installations. Gnoseologicheski were naturally-rule of law represented following or from divine reason, or from the physical nature, or from human nature.
The edging has opposed naturalisations estestvennoju the rights and against metaphysics from pure concepts - the Doctrine about the Edging right is connected with dualism of its philosophy, the Edging contrasts practical reason theoretical, will - to thinking. The natural death, on the Edging, a priori also follows from reason requirements. An ego the due right, that is the right what it should be agree to requirements of practical reason. The positive law represents historically
gkant And, Criticism of pure reason. M*: thought, 1994. With. 27 g SWrig Id. J. Kleine Weltgeschichte der Philosophie. Fischer Taschenbuch Verkg. Frankfurt am Main, 1993 S. 34? s Schekuske H, an an O S, 92,
os
The developed legislation which should correspond to the right естественному1, Unlike Aristotle and Fomy Akvinsky's tradition a moral-legal debt is deduced at it not from purposefulness of human life, and contrasted with an independent will of the person as the moral law named it 4‘категорическим an imperative "2. Observance of requirements“ a categorical imperative ** is possible when individuals are capable to follow freely іхїлосу “practical reason", by "Practical reason” were covered both the ethics area, and sphere of the right \Reason of the separate individual has crucial importance for the Edging. Besides, the Edging divides morals and the right, consolidates them then under the higher concept нравственности4. Thus, the base and a measure of own right consists for the Edging in “practical reason". The natural death becomes the rational right in standard sense and gives to the positive legislation unchangeable principles spravedlivosgi. For Kanga the natural death is inalienable rights of the person with which should provide государство5.
It is necessary to notice, that the natural death influenced a science and positive law practice, first of all in XVHI a century. In the versatile development the thought of the natural death carried out in history of new legal thinking dvoj ї і uju function; or as educational system for training to the right for the purpose of rendering of influence on judiciary practice or as model for the legislation on purpose to put
J Poles And, V.Ukaz, soch, With. 63-64.
"ScheLauiike Hs and. And. About S 92.
At History political and iravish.і* Doctrines. The textbook for high schools. / under obshch. red. V.S.Nersssjandja. M., 1996. With, 4Ш * Schelauskc H, and and About S 92.
s History political and mranovyh doctrines: the Abstract of lectures / Kol. A bus of SPb.: ‘ the Alpha ", 1999. With. ZJA.
дослідне є on checked up by reason, reliable philosophical основу1, SHkoda natural customs achieved success in two directions; in - the first - distribution of the right to sphere of relations between managers and operated, secondly, in the field of codifications [95 [96]. Creating models for the legislation, jurists simultaneously took into consideration a passing from father to son traditional thought of scientific knowledge of the right. They perceived “given ’* it a material of the positive law времени* processed it and kept, if it appeared reasonable, expedient and fair (in sense of an objective social ethics - an order of duties) [97]. Connection of the rational right with state planning has caused to the beginning of XIX century in the large Central European states the first wave of codifications [98]. Codifications of an epoch of Education protest against usual and prejuditsionnogo the right resisting to them [99]. Codification has been urged to improve the existing right. The belief of representatives of an epoch of Education that free, reasonable and moral actions ruling can create the best society was the internal precondition of these state undertakings. Codifications are created by boards of professors or the high-ranking judges as it usually takes place at creation of the big codes, and formed in the political and philosophical relation the entrusted people of the regent or a staff of equally conceiving civil servants. On the majority of German territories during this period there were from patriarchal ethics of the government ratsiottalytaja ethics (based on reason arguments) which the government perceived as the employee for the state blessing, and despite resistance of traditions of church, the people, lrof essi it is scarlet і »n y h lawyers [100].
The rational right, appear, should specify a way to actions dzja preparations of the project of the best society and a social ethics according to the reason purposes and by that to carry out hope ' in definition uniform for all criterion of the maintenance of the true right, the earliest and deep expression is belief has found in the plan of codification young Lejbnitsa “Corpus juris reconcinnaturrT 1672 in which he was engaged on the instructions of the chancellor of princedom Майнц2. Offer Lejbnits wished to show, that philosophically proved organic law was necessary for requirements of legal dialogue of its time along with traditional weight of the Roman Law. In it all general cases should be brought to one universal rule or the present law. Embodiment of these principles (it represented them to itself(himself) according to the idea of "the alphabet of thoughts" as “the right alphabet", consisting of the signs put instead of certain legal concepts symbolically which should make possible a faultless logic combination) Lejbnits named ooglasno traditions "natural death" and sledovaja for Bodenom, trying to allocate from the Roman Law a kind of a universal general law. It represents the general doctrine about the right, consisting of three steps which designate its immanent purposes, develop one of another and are comprehended in dialectic связи3, Ius Strlctum the strict adjective law has for an object in action for uncertain time under the influence of political and theological reaction round using evil repute of the minister of culture Vyolnera and silezskogo the Minister of Justice Is given kel mana and under the influence of the French revolution at approach of armies of allies in Франции* By the big efforts it was possible Karmsru and Svaretsu to rescue the product. In 1793 the specified law was partially (for check) is entered in territory of Southern Prussia and only on July, 5th 3794 years опубликован* However action family and nasledstvennoju the rights in area chastnoju the rights has been temporarily suspended in old parts of the country. Further it operated till January, 1st, 1900 only in old territories Pruosii. Thus after 1813 to yes in the new areas consolidated with Prussia has been entered not everywhere, and after 1866 it was not entered at all. The Essential politsejskoju the rights has been formally replaced by the law on police of 1930. Some socially-legal areas (the building right and the right of the states - sosedsj) have effective force and till today in vosgochpo - nsmeikih the earths of Prussia and in old territories in Westphalia [106]. On the spirit the General Code of laws has been named Dilteem “Prussian natural право*. Here the interdiction of perfection of the right by means of prejuditsy, comments is proved; mostly clear, but sometimes unduly pedantic casuistry; the basic mood of benevolent guardianship and oblagodetelstvovanija citizens. The above-stated allows to draw a conclusion, that it seemed to historical natural death possible to create the present right to the smallest details. Danger of this belief consisted in suppression of any creative justice which later was showed in disrespect for the law. By spirit of the rational right are got essential polozhennja the Code of laws, in which basis - the system created Pufendorfomi developed X, by Volf,
Material ethics in a new fashion, with doctrine use about duties have organised a material of the general права2.
This code on the style and the maintenance is expression of the highest legal culture of nanosecond only time. In first and last time in the European history of the legislation the extensive plan of construction of the state with basic understanding of human public organisation has been constituted. The idea was right, the reason based on arguments, is got by a pragmatism and the historical sense woken Tomazism and Montesquieu, Proceeding from belief in possibility of absolutely correct right (in the given historical position) there was a noble aspiration of the legislator to manage in advance to plan all admissible relations. Contemporaries glorified this code (so, Geni er offered it for all Ger to mania) t at young generation, for example at Tib about, it has caused idea of national legal unity. But eventually the codec has lost evoju an urgency. The Austrian and French codifications have surpassed its simplicity and universality.
Thus, Charles Gottlib Svarets has constituted n “the General code of laws d: і I of the Prussian states '" 1794, and also year ra§shshe in the book about novel introduction (“Laws for inhabitants pruss to silt gosu yes rsgv '") rational model of a state system. Original is social-ethical view, since diltsja, name “the Prussian natural death", connected with objective estestvennopravovoj thought as it is based on utilitaristsko - individualisticheski ch legal sights X. Volf and on their legal application Daresom. It finds the expression in the doctrine about establishments and the duties formed of the basic social values. Among them it is possible to find vi odne "modern" thoughts, such, as the general is social-hygienic duties on preventive maintenance, duties on rendering assistance and the indemnification; Here property restrictions sotsi and l but-politi ■ іеского sorts are proved in natural-legal relations, And menno gosud aregvo it is considered the interpreter and the guard of the natural death and consequently it and is intended/tspg the only thing законодателя1.
Austrian Civil code ISll of year had the same value. TSej l ler, the inspirer of it zakola, simultaneously the author of "Natural private law” (1802) has seized substantive provisions of philosophy of the Edging and has tried to connect traditions Pufendorfa, Tomazija and Volf to its terminology. The problem was facilitated by that circumstance, that Kain has included doctrines of ancient philosophers nrana in the “Metaphysics of customs”. A method
■ Wolf La. And. O S. 146 "from the general principles", in everyone случае* it is represented to deduction less kantianskim, than the effort but to maintenance of civil freedom by means of the accurate formulation of the lawful facts and instructions (the strongest difference can in it from be welded), Related with ranneliberalnym a course of reflexions is aspiration TSsillera to differentiate the right, morals and interests of the state and to create relations mutual невмешательства1.
In Bavaria is natural-legal codification was osushchestalena early and is a merit kurfjursta Max Joseph Мій its vice-chancellor background Kreipmanra (1705-1790) which studied at South German and Dutch universities, later worked in Superior court and occupied responsible posts in Council kurfjursta; since 1758 Dejstvitsln§j the Secret Chancellor. As a push for codification (as well as in Austria) the impression of the Prussian constitution of 1746 has served, and motives - association of the territorial right and the decision obshchepravovyh questions at issue, Krejtgmajr which during long time was engaged in all codification, were finished in 1751 by the Bavarian criminal code (which has not influenced yet criminal zakoegodatslstvo Education epoch: the crimes connected with sorcery »tortures, barbarous kinds of crimes); It was followed excellent, improved obshchepravovoj process, the Civil code of practice, and in 1756 by last and most considerable Civil code.
Under the maintenance this code of laws is a general law: regularly it is constructed, as well as proekty the big German states of that time, according to code Юстиниана* However the general planning is already under the influence of the legislation of epoch Просвещения* and the management has passed from the scientific commissions to
Ibid. S, 146-147
IOS
To the representative of the regent. Despite some ancient lines, et codification is a worthy prologue to new законодательству1
The contribution to the European history of development of the natural death Bavaria has brought thanks to Anselm background Fejerbahu (the Bavarian criminal code 18ІЗ year). By this time Criminal code Krejttmajra has become outdated, that was an occasion to a radical reform in the field of criminal права* Working out of the new criminal code has been charged Fejerbahu, to the young philosopher and юристу* on the basis of its critical works. This criminal code was during half a century the sample for criminal codes in the German Union and in other European countries up to creation of the Prussian criminal code in 1861 іюду [107 [108] [109].
The major in the natural death as models for the legislation is that to it attached significance vnepoliticheskogo sorts even there, where also the state "(the prince, the absolute master) was considered as its distributor and the executor; thereby, even at branch from ethics and theology, existence of spirit of all legislation affirmed, C it had been connected everyone, even the state legislator who should tower over the theoretical legal system and its application. Even if criteria could be separately borrowed from various sources and traditions (Divine Revelation, custom, natural morals, practical life experience), they always put before the right and right realisation one problem - responsibility. Always confrontation права5* the Natural death took place approved in each of the various forms, that the nanosecond exists the rights which would be justified by only one power, expediency, tehnikoj.obespechivajushchej legal safety. Justice of a positive law never we are justice in itself - it always was the great and eternal doctrine of the natural death.
It praktiko-is watered and ches which value of the doctrine about the natural death consists first of all in that. That it is alternative: whether is it result of will or reason, it is necessary, just for the sake of objectivity to accept the point of view, that it grows out of reason, instead of will by means of which the right arises among people [110].
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A source: RJABCHENKO Hope Gennadevna. PROBLEMS OF NATURAL LAW IN THE DOCTRINES OF GERMAN LAWYERS. DISSERTATION on competition of a scientific degree of the candidate of legal sciences St.-Petersburg - 2002. 2002

More on topic § 4. Evolution of the concept of the natural death in XVIH century:

  1. § 1. Preconditions and consequences of crisis of the natural death in the end of XIX - the beginning of XX century
  2. the relation to the natural death theory in postclassical legal philosophy XlX of a century
  3. §1. Concept of the natural death. Ilyin about the spiritual nature of the right.
  4. § 3, Ordering of representations about the natural death (With, Pufeidorf)
  5. traditions of scientific school «revived natural death»
  6. rationalistic concepts of the natural death and their realisation in the legislation of New time
  7. genesis of representations about the natural death during an epoch of Antiquity and their realisation in the Roman Law
  8. treatment of problems of the natural death in Russian filosofsko-legal thought
  9. THE CHAPTER II. I.A.ILYIN ABOUT THE NATURAL DEATH.
  10. features kommunitaristskoj natural death concepts
  11. 3.1. The Personal freedom as a natural death source (the Edging, Fichte, Schelling, Gegel)
  12. influence of religious-moral values on process of formation of a problematics of the natural death
  13. § 2. Conceptual registration of idea about the natural death (And, Oldetsdorp, I.Altuzy)
  14. DEVELOPMENT OF THE THEORY OF THE NATURAL DEATH WITHIN THE LIMITS OF THE MECHANISTIC PARADIGM OF NEW TIME
  15. ] l and in a 2. PROBLEMS of UNDERSTANDING of the NATURAL DEATH In WORKS of GERMAN LAWYERS NOVEJSHEGOVREMENI