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§ the Problem of a parity natural and a positive law.


Question on that, has arisen.ti the right together with the person or exists thanks to a strong-willed establishment of the power, is the central question of legal philosophy and simultaneously a starting point of two opposite directions.
Supporters of is natural-legal thought believe, that if the right is available to it at camps is put shja by the power it can to become under certain circumstances the right against the state which legitimises ability of separate persons to avoid the compulsory power. Supporters of legal positivism contrast with them the thesis according to which it is possible to consider as the right only that the sovereign power has established. How the higher authority has come to domination - legal by or by means of an arbitrariness, for action of the norms of nanosecond recognised as it has values though it is supposed, that the question has ethical value. Supporters of legal positivism do not deny existence of legal ideals, however they are considered (for the sake of legal safety) not as direct sources of law, and as the psychological reason of occurrence takonyh. That the ethical maintenance of these legal ideals was significant in legal relations, it is required, that they were признаныІЗУ
Legislatures, and if them recognise as eticheski the defensible requirement and by that dare on their legal pozitivatsiju in certain degree it is possible to avoid the serious conflict. Versions of legal positivism from an antiquity and have up to now various nuances so the designation is collective понятием1.
Expression "a positive law '" assumes a legal category which separates the right from other areas. The essence of the designated direction consists in the relation hundred adherents to the source of law [160 [161]. Since Aristotle's times division of the right into the natural and positive means aspiration to definitions. It is shown in oppositions "right" and "justice", the "formal" and "material" right, "positive" and "sverhlozitivnoe" {with claim on higher importance). The specified alternatives show, that the uniform concept of the right is inexact and consequently can be deduced from the relation of aspects of positivity and ideality. The one who demands from the right more than positivity, at an estimation of concept of a positive law will be guided by criterion of the true right. The one who, on the contrary, from the very beginning will give to a positive law quality of the true right, the nanosecond will be engaged in right and morals collisions or morals [162]. Natural and a positive law the non-uniform phenomena owing to what cannot be classified on the basis of the general criteria [163].
For understanding of these javljaty more exact knowledge of invariable constructive auxiliary means with which help, the natural death theory tries to solve the basic problem - the relation between the natural law and order and positive customs is necessary. The natural death is a social theory which is aimed at knowledge права* It should to prove the picture of the right by means of reason, irrespective of action or absence of action positive права* And as it arises and approves the spiritual domination during the periods of revolutionary changes should affirm as reality, proving in construction of the system positive law action.
zadanu западJіоевропейское the natural death tried to solve this in the beginning by means of a symbol public договора* F. Viaker believes, that in modern historical consideration to our consciousness lead up the historical or sociological phenomenon of early mankind or the beginning of the historical basis of the state. Actually it is a question of a traditional cogitative image which is most easier is understood as a scientific myth [164].
Discussion between supporters of positivism and the natural death has old roots in the European jurisprudence. Its sources lay in antique Greece »given mkru legal philosophy, and the Rome which has created developed system private права2. The antique natural death has hardly probable resolved the contradiction between legal idea and a positive law after the religious substantiation of the right has faded. The Greek thinking about justice has sustained a failure under charge of a hand-written legal order of policies or from legal cynicism of younger sophists; or it attached to a correct positive law significance of its ideal requirements (“ Zakoly* Platon). Only Aristotle does the person as a being predisposed to formation of a society, a starting point of the doctrine about spravedlivos і'и: then the public contract directed stoikami on universal unity of mankind, bo l mgte does not disappear from tradition, first of all, thanks to doctrine TSitserona about обязанности*. The Roman lawyers of nanosecond see requirements for pressure creation between the initial natural death and historical национальным3, In antique tradition the morals and a positive law are consolidated by one general justice. The order based on laws, vnu§renne is fair. Thus, both positive and the natural death show ethical value, providing equality, freedom, an order and justice. The right is not considered as something external, imposed to the person, but as something to it immanent as to a being reasonable. From here ■ submission to the right, execution of laws is the moral obligation. An equality principle, perhaps, basic in antique pravoponimanii. But equality priznastsja only within the limits of collective which is the right carrier. The separate person was not realised yet as the independent person. The idea of individual freedom and, accordingly, the right in antiquity could not develop. Extend actions of a principle of equality could only stoiki which considered the right as expression universal to reasons
In the Middle Ages when the state and the right have been put in dependence on a divine order, the contradiction between the natural death and positive legal it was erased. Even when during struggle between church and temporal power the divine precept is directed against an unfair human establishment (4tBora it is necessary to obey more, than people ") pressure between ' natural and a positive law the foreground does not act as a pas. However the moral theology has continued thought on the public contract, and the medieval [165] idea about the power and the state is put in pawn in thought on the contract which is the psychological and practical power; it serves for a substantiation of the right to resistance against the master in situations borbyuzhe at ancient Germen the king there was a symbol of unity of the people, the intermediary between the people I gods, the keystone to success in different affairs (a victory, the world, a crop I t.d,) g Between it and parodom existed the reciprocity relation; Its power was based on customs and an ox of the people. From here the right of the people to resistance against the king who does not respect the constitution and becomes giranom, Not the people belong королю* and the king to the people as its higher blessing -
In the Middle Ages the right still nanosecond was accurately separated from religious precepts, morals and обычаев* It is the inherited, good, old right which on the idea is invariable. That is the right, dares in disputable cases the judge. There are books in which the common law registers, for its difference from usganovlennogo the state, the written law, royal adjudications which appear as judicial actions and reformatsii the rights-.
The right is something established and depending on will suverena. Roman lawyer Ulpian writes: *’Что the Kaiser will desire to order, is effective as law * ' (Digesty 1, 4, 1). Following the sample of the Roman Kaiser, absoljutistsky the prince tries not to be dependent from created by the state права* the New right affirms as a positive law as struggle with traditional and the christian law. The established right appears as state приказ4, Since XI века* orientation on changing potreb g visitors права* the Requirement of the daddy [166 [167] [168] Roman that n it is necessary for dependence on time to create novels is observed, plans программу* in which the power and legal regulation incorporate and the last is directed proshv other carriers of the power even if the daddy “закон* means the right of the Kaiser or the right of a sort (tribe) by a word, or own, has got ennuju under a question a church cathedral privilegirivannuju the power, In a counterbalance to the daddy Ludwig Bavarskogo (1314-1347) later has terms" the higher законы1* (supra leges) and “the legislator ' 1 (legis la tor)! Laws still nanosecond appear in person the concretised positions of the right that becomes clear of underlining as their general meaning“ leges genera1es "(general laws), and distinctions of laws (leges) and privileges (privilegia). Solving that laws are considered as established, however, is, changing in time, and as politically used, with force of action in relation to older right. It is a new position for comprehension of that time when discuss equality of concepts “iustitia positiva"("justice positive") and "ab hominibus inventa ** (“ invented by people ") and prove theoretically positivity of human law-making as source права1.
According to these from the initial and Roman imperial right following representations Baldus formulates in XIV century "lex posterior derogal lcgibus priori bus” (the latest law cancels earlier). Here discrepancy with traditional German medieval legal thinking is obvious. As in connection with it inherited, in writing the acquired right operates not because it is established by certain instance, and in force своеію immanent quality of correctness which is documented from time immemorial, and also связанны* with it of an invariance and long existence in which it joins in the traditional
і
GrawertR., century and. O S 3religiozno-eticheski the proved order of a life. "Возраст* this right it is shown not from three di and from the past to the present, and on the contrary, from its timeless ™, a constancy and impreparations. This traditional legal point of view is traced up to XVll centuries when character of improvement of the right deeply interfering during a social and economic life"reformatsijami"city and the land entitlement actually is фикцией* Mo despite constant value of tradition in a legal life the thought on the tool and functional right, first of all during process позитивации1 is traced.
Though that distinguishes a positive law is not established a priori, irrespective of the experience, the established statute law appears in the Middle Ages before itself understood becomes a problem: at first, to fix old право* then it is exclusive in the form of charters, especially in the police legislation. Expression "positive law" has arisen before term occurrence “legal positivism”, from the ecclesiastical law or from Montesquieu's explanations “lois positive” [169 [170].
The outlined accurate branch of a legal rule from morals and justice substantive provisions limits gradually an object of science about the right, reduces it to a statement of the established right and to support of this statement for which dogmatic persons which regularly orders the law in force maintenance in legal principles n institutes develop variety special interpretatsionnyh methods by means of legal and is sharply separated from legal political reasonings.
Occurrence of a positive law of New time in force jusudaretvennogo right establishments has specified answers to questions that is correct; and whether that is defined by the law is fair and expedient. Opposition of legal positivism and the natural death takes here the beginning [171]. The hook as the rational right isolates the divine right from the political ethics, pressure between natural and a positive law again iarastaet. СтрV1KType the public contract rationalism of the natural death gives more attention than to something to another. Its logic necessity is deduced from informative and istinktivnyh forces which the tradition attributed to the natural person; from its sociality, feebleness, a self-preservation instinct. The individual, following reason requirements, submits to restriction of the rights by a society by means of the social contract. The rights and duties which remain after that, still are the natural death so a primitive condition of individuals to their organisation in a society and the right of a natural society follow one after another. Thus, существуюі two steps of the natural death from which a subject of the legal systems, the reason based on arguments, the second is only. The contradiction between estestvenngm and a positive law is not eliminated by means of obshchestvennoju contracts, it followed by the contract on submission регенту2.
The positive law owing to that is logically deduced from a natural society, achieves and for the rational natural death transpositive оправдания* the Contradiction accrues again when one of the parties demands unilaterally cancellation of the public contract or the contract on the power ■ an old theme of the right on сопротивление3*Таким in the image, on a basis etatistskogo branches of the right from originally complex articles in which the peace-making good order of legal community was expressed, independent critical reason becomes right, idea of the right, justice and the natural death as the superright or nadpoeitivjaoe the right and as dogosudarstvenjaoe representation about the good kind right
It is contrasted with a positive law. The right and the law, ius and Iex1 are differentiated and act against each other. During bourgeois revolutions XVII and XVTII centuries in England, the North America and France the rising bourgeois society successfully turns the
Representations about legality which it, polemizing, forms in categories of the rational natural death, "the right based on arguments of mind” against pre-revolutionary legality of the inherited traditional right. It can lean thus on proved by Greeks and on a Christian basis developed, further sholastikami tradition of is natural-legal thinking. But up to the beginning of XIX century the right continues to be studied within the limits of moral philosophy [172]. Definitive division of subjects of ethics and jurisprudence has occurred to development of legal positivism.
Further legal theories which are covered by the name "legal positivism", consider pozitivashpo as solving criterion for distinction of the right and is wrong. They interpret processes of material law-making as feedback with life realities. In this connection the right is considered positive if it is deduced at an exception of metaphysical representations of knowledge of positively given states of affairs. Legal positivism has arisen as expression of the European thinking. Life realities by which are guided
Theories of legal positivism social and economic, it is social - psychological, 11 about n jat and j 11 o-realistic or holes mativnogo
Origins, promote occurrence of various theoretical systems as versions legal позитивизма1.
The German lawyer R.Gravert allocates following variants of legal positivism. Sociological positivism concentrates the right to social behaviour in a certain society. Its is social-psychological variant tries to prove the maintenance and value of relations, representations and волеизъявлений* At ”jurisprudence of interests” the right, following R.Ieringa's belief, grows out of the various points of view and directions of interests. Scientific positivism, on the contrary, deduces legal statuses from the world of concepts. "Conceptual jurisprudence" is released in doctrines Vindshajda, Puhty and Labanda from ethical, political and economic values for the sake of undemanding to itself of system of dogmas. A subject normativistskogo positivism are law in force positions, For this purpose “the Doctrine about the pure right” G.Kelzena suggests to clear a legal order as system of norms of not standard realities of life and valuable representations. For legislative positivism led by Bergbomom, the leading representative of this direction, each law created correctly in a conventional attitude, has obligatory force-.
German lawyer G Klejner believes, that pozdneburzhuazntj the way of research of problems of the right is step back in comparison with achievements of theorists of an epoch of Education. The primary goal postprosvegitelej consists in belief and reason connection, compilation of texts becomes the main thing, the clearing philosophy is replaced [173 [174]
Theories легитимации1, Representatives of legal positivism deny communications between real and due, between the validity and the blessing, between a society and the right. It is a question, according to G.Klejnera, about rationality which is under construction on the base irratsionalizma and exists in its frameworks. The question is put not about the customs maintenance, and about, whether correctly with formatnoj the points of view operated legislative go judicial body-. Legal positivism could not satisfy all требованияj shown to theory of law [175]. Answers to questions: what is the right in what positivity of the right consists, what mechanism of this pozitivanii what genesis, functioning, value, a role, appointment, the maintenance of "positive law" and td, ■ appear superficial, ieposledovatep nymi, is weak obosnovanny mi
Theoretically [176 [177] [178] [179]. Legal positivism does not give a uniform picture about the right. Its various displays snatch out only separate aspects of complex communications and interpretation: on the one hand, social behaviour of members of a society; with another - the Supreme power state органов5.
Positivism cannot explain constitutional and international law, and most the follower] tye its supporters approved. That such customs not ї ’. The Constitutional law limits the government in the country. The international law imposes on the state of the obligation to others странами*.
Thus, legal positivism finishes a principle of positivity of the right. It isolates the established right from it of the public conditions which have been carried out in it of political ends and these to-philosophical criteria of justice and isolates abstract and general provisions of the right from realisation of the right by means of the judge. The right appears as the order of legislature menacing by sanctions which is applied in a separate case so the judge in the podchinenno the accepted decision to the maintenance of the right adds nothing. The science about the right specifies the law in force by means of a logiko-analytical design from concepts of the right (constructivism, conceptualism) in which independent existence of the right is learnt definitely, regularly.
Right use in the totalitarian states, in the Third Reich has shown danger of positivistic legal concepts and has hardened doubts of many lawyers. Danger, however, is not criterion of abnormality just as reliability is not criterion of the validity. The criticism of positivism much more deeply also mentions a logic substantiation of the right. According to R, Launa. Legal positivism deduces the obligatory force of the right from physical violence of the state p an admissibility of physical violence from the positive law obligatory force. The present right only there where the morals and positivity, an autonomy and geteronomija coincide, that means a moral positive law is moral the operating state and is moral operating legal community народов1.
The positive law school in Germany in the beginning of the existence recognised that while people live in the conditions of a lawful state when the state will not operate unfairly, thought on a positive law as about an order created by the state, will not cause sensation of danger. And only
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The post-war situation in Germany has shown, that there is an essential basis to speak about the true right. Legal positivism did not spend this distinction, thereby has made the state in this area всемогущим1* C other party, supporters of the natural death should recognise, that the positivism school as a historical phenomenon has brought the contribution to a science about the right thanks to legal system specification, more accurate otgranicheniju from mstajurjadicheskih areas and more accurate systematisation. Follows otmstit, that legal positivism gives bolshee value of legal safety, than the doctrine about the natural death [180 [181]. Just from reasons of legal safety the natural death admits positivists as the ethical factor.
Despite opposition, natural and a positive law mutually do not exclude each other. The is natural-legal thinking resists not positive, and “only positive”, to law-making inclined to an arbitrariness. It is a question of legal positivism according to which any instructions can have a rank I operate ідею the rights. German lawyer L.Kaufman acted debate of opposition natural and a positive law as extreme measures. The positive law problem to be - “the present правом11 and to include the natural death, the Natural death, Eie possessing any positivity, cannot exist as the right. For Kaufmana the law and the right are in the same relation, as possibility and the validity. The law is not the right validity, and only a step on a way of realisation of the right. While the law represents the general provision for set of cases, the right should solve concerning a concrete situation here and now -" 1.
Now critical and even revolutionary from the natural death the capture under doubt ntne the law in force has passed to public наукам* the Positivistic approach in that виде* in which it has developed to the XX-th century beginning suffers many lacks, main from which are transformation of the right into the state tool the state and unwillingness to analyze the substantial party норм1* it is necessary to notice a humanistic orientation of the doctrine natural права* in which centre the person, his life, freedom, advantage that is especially conformable with modern anthropological concepts in the humanities, won R the XX-th century end extreme popularity [182 [183]. As the positive law in bolshej or a smaller measure is domination expression, cry out also the authorities justice ire can receive in it full development and to become as criterion of the true right излишней* Even if a science about the right cannot refuse division of the law in force and criteria of justice and целесообразности* not having broken main principle of legal culture of New time, it all the same cannot lower a question on justice, not becoming at tgom the blind servant of the operating political power. odnostoronnost positivistic thinking gives possibility to theoretical penetration of standard properties of the right, but refuses an explanation of its social function and conditions of correctness which She demands legal идея* deforms practice of formation of the right and its realisation, separating law-making from judicial application of the right. In “for ’* and ' contra positivism and estestvennog about the rights which continues to live in variety of opinions, it is a question of in what volume of a condition of the validity of the right odnovremennomogut bt» a prize kapy preconditions of correct law-making. Because many modern constitutions have written down the basic requirements of justice as legislature obligations, the question about fairly sti a positive law became legally solved and the problem of the fair right has moved on a question about dopozitivnom the obligation of the legislative (constitutional) power.
Complementarity of approaches in right studying is underlined and in the domestic literature. Professor Kuznetsov E.V. believes, that ■ ’ the modern is natural-legal thought any more does not consider idea of the natural death as moral criterion for an estimation of a positive legal order. The tendency of rapprochement natural and a positive law is observed. 13 separate cases it is a question about "pozitivanii" the natural death which is interpreted as system not only moral, but also legal obliging principles ”1.
Professor Kozlihin I.J. specifies in if to consider a parity of the named approaches to right studying the conflict between them, in its opinion, is represented decided as any theory of the natural death assumes presence of system of a positive law. The conflict exists not between various types ttravoponimanija, and between outlook types; liberalnoindividualisticheskim - legal inherently, and kollektivistsko - etatistskim - inherently not legal [184 [185].
Inclusion
Is natural-legal representations arise in an extreme antiquity ► Before the is natural-legal thought has got scientific character, has approved the subject and a problematics> the long historical period was necessary. In the development sstestvsnno-gtravovaja the thought in Germany had a number of features. The German history of law reflects opposition of the German world and Christian antiquity that has caused existence the friend near to the friend during nearby half of millenium inadequate and
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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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  12. Grin Alexey Vladimirovich. the PARITY of the NATURAL DEATH And LEGAL LAWS In the conditions of DEVELOPMENT of the CIVIL SOCIETY (theoretical aspects). The DISSERTATION on competition of a scientific degree of the master of laws. Rostov-on-Don - 2014, 2014
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  15. RJABCHENKO Hope Gennadevna. of the PROBLEM of the NATURAL DEATH In DOCTRINES of GERMAN LAWYERS. The DISSERTATION on competition of a scientific degree of master of laws Sankt-Peterburg2002, 2002
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  17. § 2. A problem of a parity constitutional and a lawful state in domestic politiko-legal thought of second half XIX - The XX-th century beginnings