ž 1. Preconditions and consequences of crisis of the natural death in the end of XIX - the beginning of XX century

To middle XVHT of a century the jurisprudence was under the pressure of authority Roman and the christian law, and the general ideas were a part of a traditional heritage so the natural death has been fixed in the christian law.
In XVIII pitch the natural death under the influence of rationalism turns to the rational right, thus, to first third XlX of century the natural death theory constitutes the essential of the European philosophy of the state and the right and during the Education epoch solving impact on the general development of customs and the state makes. In a century of philosophy there is a refusal from traditsionalizma for the sake of abstract legal ideas, “and again under a sign on romanticism we observe returning to a mystical cult of the past * [111].
Mosle the period of blossoming on the eve of the French revolution the natural death became уірачивать the value, Abstract tendencies of rationalistic philosophy and history ignoring were adversely reflected in scientific processing of the positive law. Both elements, constituting concept of the natural death, - the nature and the right ■ caused stubborn problems which have led to changes and were considered, according to many theorists of the right, insuperable. The German science of law was within almost two centuries in sostojavni udasha. For this decline of jurisprudence blamed sometimes estestven but-1 ірановую school. However imperfection of jurisprudence forced to search for shelters in the natural death, наПІ
mto specified Лейбниц1. After the Edging new turn fi losofeko-legal thinking was outlined. It has been prepared by Johann Gottfridom Gerderom And 744-1803) from it “Reflections about world history philosophy" - the product, made the big impact on Johann Wolfgang Goethe who was not only the great poet, but also the doctor права* Goethe was interested is natural-legal and problems, and in its statements are traced antipozntivistskis lines (for example: “ Laws operate during bolshego or smaller term, the ego is known. The jurisg-expert is forced to try skilfully and to general satisfaction to solve concrete affairs, being conformed with own discretion ") *. Historical consideration of right Gerderom has made the big impact not only on Goethe, but also on historical school of the right, and also Fichte and early romanticists. Charles Savini. The founder of historical school of the right, and its followers usmazrivali in the right a product of national spirit, at Fichte and romanticists is the nation, the state from which appear the right n the law as an embodiment of legal idea consisting in them.
The further development and end have received these ideas in George Wilhelm Fridriha Gegel's doctrine. The higher source of law for it the state. It is samoosushchesgvleniem absolute divine spirit which completely includes morals, the right and an individual. As the state is the divine will, developing for formation and the organisation of the world spirit possibility of the natural death limiting the state is excluded as over will of the state there can not be higher will. As the separate states and the people are
] Novgorodtsev G Ї.
I.Istoricheskaja school toristo ╗. Spb.: ied-in"Fallow deer". 1999. With. 29-31.
7 Jugenner Herman. From і era yes the nature to the right nature f the Lane with it. T. V.Beknažar-Juzbažieia; podred, B.L.Kurkin. M.: Publishing house "Progress", 1988. With. 86.бессознательными tools for realisation of world spirit which prepares transition in following, higher step the nanosecond can be it z revenging emyh legal statuses: all right is historical and positive as only in positive laws it becomes clear and определённым1. However wrongful would be to consider! " Laying the positivist in modern sense of this word. Though the state establishment has advantage before the speculative rational right and a general law, vtrastajushchim from “mysterious national spirit”, not Gegel is guilty that esgestveshtoe the right has fallen into decay. To this point of view it is possible will join if to take into consideration subjective intentions of philosophy of Gegel-. Gegel gives to the work "Legal philosophy" a subtitle “the Natural death and a science about the state", It criticises novoevropejskuju the natural death concept, believing, that in it transition from eternal "natural" legal laws to the rules of law developing in histories is not revealed. According to Century With. nersesjantsa, Gegel does not deny a problematics of the natural death, and insists on its philosophical treatment [112 [113] [114], In the theory of the natural death Gegel divides the point of view of the Edging of that all phenomena of the validity should receive the justification in reason. The natural death is not contrasted positive, and represents itself as its ideal basis. He tries to update classical, mainly aristotelevskuju tradition, recognising, however, a principle of subjectivity of New time. Gegel saw a natural death basis in idea of the free person, in its self-determination [115].m
Theoretical crisis of school natural drava in the first quarter of XIX century has resulted in the statement in jurisprudence historical and positivistic школы1. In 17S9 the professor of law in Goettingen Gustav Gugo has stated to year the point of view, that pe can exist the distinct from positive natural death in this connection in the “the Textbook of the natural death or positive law philosophy” he urged lawyers to be engaged only in the positive law. The Item And, Novgorodtsev wrote about its views: “It was that kind историзма* which і * is resolute negation of the essence of the natural death *".
Gugo is the founder of a direction in the jurisprudence, received the name historical schools in the rights. In the attention centre the attention to the question on how the right arises also what its history has been brought?.
Charles Savini, the most outstanding representative of historical school of customs and. According to G.Kyoblera, “the most considerable German lawyer вообще1 * [116 [117] [118] [119], and its followers saw a product of national spirit in the right. K.Savini believed, that with movement of national spirit also the right spontaneously evolves. Dynamics is right it is similar to development of an organism from the germ. At the first stage of the development the right acts in the form of customs, esh the second is processed by lawyers, remaining * connected with the general belief of the people [120]. As marked FLH, Novgorodtsev,
The philosophical party of historical school is entirely defined by its relation to the natural death and to consisting with it in communication to old sights at history. It is possible to find in the basic views of school and a recognition of some healthy tendencies naturally-pravovojfilosofii1. If its view about organic development of legal rules from national consciousness has been proved historically and philosophically, it. Certainly, would be capable to undermine idea of the natural death as if the positive law is an organic product of national consciousness which is created besides human will its criticism appears inappropriate. Eliminating possibility of criticism of the positive law, theory Savini pressed morning to idea of general principles the right of formation which always constituted a support is natural-legal стремлений2. However Savini supposed
Possibility of overseas influences and cases the legislative
Interventions in an organic current of a life. So, as the sample chiżju organic development the Roman Law served for it. Supposing possibility of historical anomalies, it ran into a circle of naturally - legal representations. The critical relation to history and a recognition of necessity of l iinogo interventions in its processes followed egtejuda by itself. Though it was not return to antihistorical views XVHI of a century, here, undoubtedly, the known recognition of the basic aspirations of the natural death consisted, Savini has not found the moral justification for historical праваt that has led to wrong representation about a positive law being. He has repeated an error of old is natural-legal systems it was not possible to them to spend border between ideal sense of justice and legallistic norms. If Savini, as well as former philosophers, recognised behind ideal consciousness of the people the jural significance he did not try
' Nojagorodiev P. I. The decree. soch. With. 74, 2 In the same place, With. 75-76.IlJ
To establish the maintenance этоіх> consciousnesses by reason - It it was represented to it to data for reason and a subject subjective усмотрению1.
Views To, Savlni. Connected with ideas of romanticists about the ancient German right, did not promote legislation development.
Thus, the historicism of XIX century with the love to archaic forms of a life has complicated the legal decision of social and economic problems in a society which was on a way of the changes connected with development technicians. Under the doctrine of historical school, there is no eternal, universal right, the right is a product of history K1 Savinn and historical school revive a science about pandektah, that gives rise to last big wave of the reception of the Roman Law. According to lawyers of historical school, a problem of history of law is the understanding of the law in force. According to it, the historical understanding of medieval legal thinking proceeds more likely from the general, than from private law and their contribution to the further development of operating private law was insignificant. The program of historical school has complicated creation obshchegermanskogo the code of private law [121]. Later the historical school shares on novelists (Charles Savinyts George Fridrih Puhta, Bernhard Vindshajd) and germanists (Charles Fridrih. Ejhgorn.jakov the Grimm, Otto background Girke). The pupil and follower Savini George Fridrih Puhta makes responsible for right occurrence not the people, and on lawyers as legal representatives of the people. Lawyers are authorised to create legal statuses. Puhta it is convinced, that 41не from concept of reason it is possible to come to concept of the right ' 4. However melodiously Puhta comes back to approaches of the rational right and
* Novgorodtsev P. I, Historical school of lawyers. Sgtb.: Publishing house "Fallow deer". 1999. With, ú2-84.
1 Trubetsky E.N.encyclopaedia of the right. Spb.: Publishing house ilan ’\І99Я. With. 65.
1 Miitcis Liebericbj and. And. About S 469-470 ^t і ї moshinz E. V.Ukaz. soch. С.23.
╗Focuses lawyers on use of system of purely legal, positive concepts from which for each problem the decision can be found. Thereby the doctrine about national spirit is replaced with Jurisprudence pon Я'J y L
According to G.Shelausks, right development in XTX a century which finally has led to positivism domination, represents reaction to is subjective-rationalistic designs of an epoch of Education. Against the rationalistic doctrine about the natural death the criticism of historical school of the right and its founder Charles Savin i has been directed. The aspiration of this school to draw attention to necessity of historical consideration of the right has been exaggerated in second half XIX centuries and has led a science about the right reljativizmu, the Austrian lawyer of L + Ferdross has expressed thought, that the history can give only sequence of the various facts and estimations, but never - criterion for measurement and the analysis of these facts and estimations -
Thus, the German jurisprudence was engaged in the further development dogmatic persons of a general law, Pandektisgika ^ XlX centuries has led to development of legal positivism which was limited to ordering of norms of the given legal order. Result was high, but extremely formal legal culture, On change to legal positivism in last third HÂH of century legislative positivism with which the belief is connected has come, that law-making and scientific application of the right should be separated from each other according to 3 separation of powers. Legislative positivism bases the right on the law personifying will of the people. The judge appears closely connected law identical праву1.
The first step to legal positivism has been made by Adolf Merkelem who acted prosiv any rola meta physicists, denying any order, stojashy over a positive law. He believed, that the legal philosophy should have a subject of the studying positive norms, as well as jurisprudence, refusing from any estimation of the maintenance of norms [122 [123]. The Legal philosophy should be engaged in the right really operating and should become the general part of positive jurisprudence. The assumption, that along with the right positive exists be right the natural should, according to its opinion, is denied. Sights Merkelja as specifies P.I.Novgorodtsev, reflect aspirations of jurisprudence to positive law studying as edinstven і go valid [124].
The same views underlie pandektiki which classical representative was Bernhard Vindshajd. It considered any order of the right as the autocratic system concluded in and excluded all ethical, political and economic reasons in relation to a science about the right [125].
The highest point reaches positivism development in Charles Bergboma's doctrine which in the book the Jurisprudence and legal philosophy "(1892) brings to refusal of the natural death. The basic thought in its doctrine is the aspiration to delimit the positive law from постороFTHHX elements. As Savini and Puhta, according to Bergboma, have not given the present historical theory, about there are the major concepts about the right and its sources have not received at them appropriate definitions an exit from these difficulties conclude╗ in distinction of the form and the maintenance of the right for an establishment of a true historical principle. An element which is necessary дія origins of the right which causes transition from area moral and political in formally - legal, that other as the external sanction of the right. According to Bergbom at, only osgavajas true to concept of the formal sanction it is right it is possible to spend strict fa nitsu between ideal consciousness and the positive law. Main efforts Bergboma. Are directed on a refutation of the jural significance of the natural death. It has nothing against right improvement, but believes, that in it the policy should be engaged. He does not exclude moral value of the natural death which can ’ and not have legal характера* in to be moral criterion of the positive law [126]. Thus, Bergbom philosophically proves an exception of is natural-legal estimations of justice and by that creates transition to critical legal positivism. It ■ the most radical form positivistic legal мышления* Various representatives of legal philosophy of this direction both before, and now oppose dependences of the operating law and order on a universal order and only признают* that the right area concerns existing position in culture ^
Joseph Koler in the book “the legal philosophy Textbook” specified, that Bergbom, despite the intention “to uproot weeds - the natural death”, has proved a full inconsistency позитивизма3.
C a practical side, according to legal positivism the judge should adhere strictly to the letter of the law> the Special role this thought in Gustav Radbruha's legal philosophy, According to its views as opinions on customs and justice always dispersed the will and the power should incur a problem on putting in order plays. But if nobody can establish, that is fair someone should establish, that is the right, Justice is the distant purpose subordinated of legal safety as the nearest purpose. Doctrine Radbruha has found many supporters. However under the influence of wreck of a legal life in the Third Reich it has come to belief that there is no exclusive action of the positive law and that it (law) deviates justice if injustice containing in it gets such sizes, that on otejun і є niju to it legal safety any more has no weight. Such turn from the sociological theory of operation of law to the philosophical was regarded by theorists of the natural death as transition to the party of the natural death and denied by representatives of legal positivism [127].
According to Henry Mittajsa, in XlX a century “the right became only abstract system of concepts, untouched essential social problems of time”. Positivism, against which the few have acted (for example, R.Iering, To, Marx) was misfortune, negativism,
Nihilism as according to idea of positivism most vysokotim criterion it was right, any way and casually established by the state. Blind obedience to any positive charter became the second nature of the lawyer, it characterised justice of an epoch of Wilhelm and has reached the highest lifting at domination ndnionju і socialism. The thought on the right to resistance which was expensive to ancestors and was considered by the Edging, was забыта1,
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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

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