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2.1 Ideological sources of sights about a violent origin of the state and the right during an epoch of the Ancient world and the Middle Ages

Process of formation and development of views about a violence role in the state - and pravogeneze has found the reflexion in works of jurists, historians, filoyosofov, public figures and publicists of several generations.

OtseYOnivaja those or other events, they leant against vital realities, sotsialyonye reference points and political experience of time. Their research position was defined both doctrines dominating in a science, and soyotsialno-economic conditions. In this connection, at studying of the given problem we suggest to start with the following periodization:

1) the Period of origin of the first representations - ideological sources of sights about a violent origin of the state and the right in the Ancient world and SredYOnevekove;

2) the Classical period - development of representations about a violence role in gosu - darstvogeneze and pravogeneze early New and New time;

3) the Modern period - new interpretations of the theory of violence: tendenyotsii developments and an urgency in XX-XXI centuries (the Newest time).

"Initial stage" - ideological sources of sights about violent proisyohozhdenii the states and the rights in the Ancient world (V-I centuries BC) and the Middle Ages (XV-XVI centuries). Proceeding from the typology accepted in theory of state and law foryomirovanija statehood and the right in the form of east (Asian) and West its (European) ways, in our opinion, research of views of formation of the violent concept within the limits of two legal sisyotem - east (Ancient India, Ancient China) and western (antique - DrevYOnjaja Greece, Ancient Rome is expedient; including the analysis of medieval West European Christian views about a violence role in the state - and pravogeneze). UkazanYOnyj the period consolidates extensive enough material istoriko-legal nayo
pravlennosti, giving the chance to reveal and analyse the intrinsic moments of genesis and evolution of the states and legal systems ancient and sredneyovekovogo the period.

In our opinion, it is necessary to underline in advance, that the violent model the state - and pravogeneza, for example, Drevnevostochnyh despotisms and the Antique states is seen in the subsequent practical (applied) dejatelyonosti the government realised at decision-making in sphere internal and foreign policy. In this connection, we consider possible rasshireyonie chronological frameworks of research with displacement before epoch of New and Newest time as periods of a scientific substantiation of the theory of violence and its registration in the harmonous concept. Thereby we prove the fact sushcheyostvovanija elements of the theory of violence already in the Ancient world.

Also the reference to the analysis of a role of violence not only in gosudarstvogeneze, but also in the subsequent government, the politician of already functioning state demands specification, that partially is beyond an object of research. Discriminating the given processes, we, nevertheless, consider neobhodiyomym consideration of violence not only as the factor promoting genesis of the state and the right (an example of application of initial violence at voznikyonovenii the Roman state), but also as means of a policy, managements, pravoyovogo regulations in the generated state (Ancient India, Ancient China, the Ancient Greece).

The West European medieval filosofsko-legal thought predyostavljaet itself a following, qualitatively new step of development after drevnevostochnoj and antique.

Synthesising the major achievements of the past the West European thought of the Middle Ages was under construction on sovershenyono other basis - ideas of Christianity. Therefore on the foreground in a substantiation the state - and pravogeneza the theological theory was put forward. In parallel with it, attempts of consideration of violence not only as the factor initiating the state and the right, but also as means osushchestvyolenija politicians in the functioning state began to be undertaken.

«The classical period» - development of representations about a violence role in the right - geneze and gosudarstvogeneze early New and New time (XVII-XIX centuries). The specified period is characterised by occurrence of national states and prayovovyh systems in their modern interpretation. Political revolutions, proyomyshlennye revolutions, formation of elements of a civil society poroyodili absolutely other, distinct from the previous epoch (ancient and srednevekoyovoj), style of thinking that has caused formation of new approaches to probleyome state and right genesis. During this period violent theories of an origin of the state and the right have received the conceptual registration, having found supporters and opponents.

In a context of research of the given problematics it is accepted to discriminate neyoskolko the schools which have generated the approaches to questions of an origin gosuyodarstva and the right: historical school, sociological, organic, materiayolisticheskaja, etc. Representatives of the specified directions differently concerned idea of violence in the state - and pravogeneze, but they, as a rule, differentsiyorovali violence factors, allocating:

- The external factor at which the state by means of a gain, poyoraboshchenija, colonial policy carrying out arises for management pokoyorennymi tribes and territories (founders L.Gumplovich, K.KautYosky, etc.);

- The internal factor of the violence generated by a society, at kotoyorom one group of people (managing directors) violently subordinates other group of people (operated) (founder E.Djuring, etc.)

In the rest, opinions of supporters of idea both external, and internal violence in the state - and pravogeneze coincided. In particular, both those and others nayosilie considered as the primary factor promoting occurrence of the state and the right. It allows to take similar division for a basis at studying and the analysis of theoretical views of founders of the theory vnutyorennego and external violence in the state - and pravogeneze, generated in the western filosofsko-legal thought in early new and New vremeyo
. Also, research of the specified period will be incomplete without consideration of sights of the separate thinkers who were not theorists violent gosudarstvogeneza and pravogeneza, but offering the substantiation of a role nayosilija in state and right occurrence.

«The modern period» - new interpretations of the theory of violence: tendencies of development and an urgency in XX-XXI centuries the Investigated period is marked sushcheyostvennym by acceleration of rates of development of a human civilisation: nauchnoyotehnichesky the progress, fundamental opening in various spheres obusloyovili a rough and unpredictable course of events.

The begun rivalry between social sciences leads teoyoreticheskomu and to their methodological delimitation: there is independent a political science, history, sociology, jurisprudence, economy, psychology, etnologija, etc. During the investigated period politikoyojuridicheskie the sciences considering problems of occurrence of the state and the right, receive the independent status and development in the Western Europe and the USA. RazYOrabatyvaemye in the USSR (up to the beginning of 90th of the XX-th century) concepts proishozhyodenija the states and the rights, basically, represented kvazizapadnuju model of perception and understanding of problems of a politiko-legal orientation.

At the evropejsko-American scientific community at research goyosudarstvogeneza the absolutising role of the population (in particular, its growth) in society development (A.Kost, A.Sekretan, R.Karnejro, E.Boserup, J is a success developed in the end of XIX century metodoyologija the demographic determinism. A mattress, etc.). As a whole, interest to an origin problem gosuyodarstva only increases, that promoted by occurrence of new original theoretical concepts. But in a context of their legal science it is possible rassmatriyovat only with the big share of convention owing to that the given theories are sociology generation, etnologii, psychology and others not jurisprudence.

At obvious variety of modern theories of an origin of the state and the right, we would like to pay special attention on offered amerikanyoskim the archeologist and anthropologist R.L.Karnejro the concept gosudarstvoobrazo -
vanija, and also to its critic of the most known theories of an origin gosudaryostva, including, violence theories. The scientist has created original classification of classical concepts in which frameworks the violence theory is considered in a context of the theory of compulsion. In the last the author sees the mechanism leading to occurrence of the state as the organisation of the political power.

Also we consider, that it is necessary to pay attention and to the modern lines specifying in viability (or, on the contrary, speculative character) to the violence theory in XX-XXI centuries, taking for a basis origin examples sovremenyonyh the states, including elements of violence. Unlike filosofskoyopravovoj thoughts of the period of New time in which basis ideas pervoyonachalnogo violence in the state - and pravogeneze laid, at the present stage owing to objective causes dominate concepts of derivative character proishoyozhdenija the states. By ways of formation of such model it is watered - and pravogeyoneza changes of organizational character, for example, can act a peace way: formation of the USSR in 1922 g; disintegration of the USSR and formation Russian FeYOderatsii in 1991; association of Germany and GDR, etc. And on the other hand, it moyogut to be models of such radical transformations as revolutionary, voenyonye revolutions, dictatorship, civil, world wars where the violence is the invariable means (factor) promoting genesis of the state and the right. It is necessary to recollect destructive I and II World wars which have affected repartition of territories of the world community; Russia 1917; China 1949; Southern Sudan 2011, etc.

Thus, the offered periodization will be taken as a principle the further studying and the analysis of theoretical views of representatives of filoyosofsko-legal thought.

About violent gosudarstvogeneze and pravogeneze we begin the analysis of formation and development of ideas with research of ideas of a soslovno-exclusive society, that is from the moment of occurrence of the first states and rudiments of the right to XV - XVI centuries the Studied period covers, according to the accepted scheme of the general isyotorii, an epoch of the Ancient world and the Middle Ages. For the first time about the violence factor in
Process of formation of statehood and the right have started talking in the Ancient world, during the period rabovladenija.

Speaking about the first Old Indian sociopolitical theories, sleyoduet to notice, that they in the majority consisted of morally-ethical and religious representations about the state and the right. In the first political vozyozrenijah there was no theoretical substantiation of idea the state - and pravogeyoneza. It has been replaced by the applied decision of concrete problems, svjazanyonyh with departure of the government which was identified with the power of the governor who was, in turn, the main element in the state.

It is necessary to notice also, that in Old Indian philosophical and politicheyoskih treatises the violence in all its displays was always condemned. In known religious sources, morally-ethical instructions and a way of life as a whole it was preached neprichinenie to all live (brahmanizm, dzhajyonizm, the Buddhism). As the higher debt the nonviolence was considered. In this connection, all components of religion, including self-checking and asceticism, represented a part of a wide spectrum of a nonviolence. For example, in «Inscriptions of tsar Ashoki» nasiyolie in the politician it was condemned and replaced with a power establishment on patriarhalyonyh bases. The made analysis of some sources has shown, that in filosofyosko-legal thought of an Old Indian society dominated kontsepty the dogoyovorno-theological theory. But, nevertheless, though and not «a red thread» the idea of force, violence passed by consideration of questions of occurrence gosudarstyova, and also in a management skill the last. As the proof of the given thesis results of the analysis of the known political-economical treatise drevyonej serve India - arthashastry, or «Sciences to the policy» («Sciences about a state system»). arthashastra represents a source containing valuable data on the state, political, economic device drevneyoindijskogo of a society. The majority of scientists consider the given treatise vydajuyoshchimsja as a monument not only economic (economic), but also politicheyoskoj, legal, philosophical, diplomatic, military thought in Ancient India.

arthashastra comprises 15 books (departments) which share on chapters (150) and sections (180). Interest in a research context nasilstvenyonogo gosudarstvogeneza and pravogeneza the seventh represent, the ninth, desjayotyj, the eleventh, twelfth departments. The general component of data otyodelov is consideration of a question of carrying out of foreign policy of India. The specified departments cover a problem of conducting war with others gosudaryostvennymi associations and the unions. So, in the seventh department it is stated six methods of conducting foreign policy, in particular, ways of reflexion of an attack of the enemy, questions of conclusion of peace, and also an image of action in otnoyoshenii a circle of other states. The ninth department opens various actions «intending to attack» and defines measures against excitements both external, and internal. In the tenth department very in detail raskryvayoetsja concept of war and its such constituting as character, ways of conducting and so forth In the eleventh department it is spoken about possible application karatelyonyh measures in relation to other unions and associations. And position of the strongest, destruction of the enemy by means of various measures (including espionage, the instigation causing contentions among next gosuyodarstv) treats a department the twelfth.

There is a reasonable question, whether is seen in the maintenance Arthasha - stry idea about a violence role in a state origin? In our opinion, yes. Besides pacific means of construction of statehood, nevertheless nemalovazhyonaja the role is taken away to war which as has truly noticed K.Klauzevits, is continuation of a policy by other, violent means [32]. War always associates with force application, with such unique outcome in bolyoshinstve cases, as suppression and the subsequent submission of weaker to stronger (gain). The given conclusion confirms also the thesis of seventh department arthashastry opening possible methods of conducting of foreign policy, one of which was war: «Teachers say, that these six methods an essence: the world, war, waiting position, approach,
Search of protection and politics of dual nature If somebody is weaker (another) he should conclude with it the world. Having the superiority can go (on another) war... »1.« The interested person should win to apply six metoyodov politicians in conformity with by own strength. With equal to it on forces and with boyolee strong it should sojourn in the world. He can be at war with weaker. After all on what stronger goes war, becomes similar peyohotintsu, combating to an elephant. Only the one who is at war with weaker, is a success, being similar to a stone breaking a clay vessel »[33 [34]. In other words, a sovereign, besides defensive measures and with a view of rasshiyorenija territories and strengthenings of power of the state, had the legitimate right to direct the armies for a gain of another state obeyodinenija or the union. According to what, war was considered worthy sredyostvom achievements of the foreign policy purposes.

Thus, arthashastra convincingly proves, that at vseobyoshchej to "nonviolence" propagation in outlook of Hindus as a whole, in upravleyonii the state, and also under the authority of foreign policy, the power was not in soyostojanii completely to refuse application of violent means and meyotodov.

Violent methods took far not last place and in foryomirovanii the rights of ancient India. Defining the extremely important role of the Hindu right in general history of the state and the right, N.A.Krasheninnikov otmeyochala: «the Hindu right — one of the most ancient legal systems, the important stage on which way of formation was occurrence of rather original monuments of the right — dharmashastr. In the Indian Dharma as though have found otrayozhenie the basic stages of development of norms of social regulation, harakteryonye for development of a human society in general» [35].

It is necessary to notice, that in Ancient India (unlike countries of Western Europe) at an initial stage of formation of the right and the state funktsioyonalnaja communication between these institutes practically was absent. In sootvetyostvii with what «allocated at a certain historical stage gospodyostvujushchaja the part of the Old Indian society which have created state orgayony only in the rudimentary form, for the statement of the class domination uses, on the one hand, already existing is religious-ethical standard, filling with their new class maintenance, and with another - creates noryomy the common law, acting in a religious-moral cover, kotoyorye and are fixed subsequently brahmanami in sutrah and shastrah. mnogochisyolennye dharmasutry and dharmashastry as collections of religious-legal instructions, instead of the state legalisations were reflexion of communal dissociation, weakness of the central power in Ancient India, the slowed down processes of creation of the political organisation» 1.

Subsequently, the customs authorised by the state were filled with the class maintenance (there was a so-called formation klasyosovoj morals) that found reflexion in dharmashastrah. In Apastambe (I, 7, 20 (7)) it is written down: «... Virtue — that clever people from twice born castes praise, and that they blame, there is a sin» [36 [37]. Execution of such norms vseyogda was provided with the state compulsion which as it is true zayometil O.E.Lejst, without doubts it is necessary to consider as "necessary attribute of each rule of law» [38]. From here, a prevalence «the rights strong» (gosyopodstvujushchego a class) and legal fastening of lawlessness and bezzashchitnoyosti weak (a class oppressed). As the Vivid example told norms of Laws Manu - a legendary monument of an Old Indian common law (II century to n.e.-Ii century AD) above serve. So, using «the right strong» the creditor faktiyocheski had over the debtor the unlimited authority, in this connection, for poluyo
chenija it is long lawfully, besides a Dharma, suit, could ispolyozovat cunning, compulsion and force, which gave the chance dobiyovatsja receptions of the lent property (Laws Manu, VIII, shloka 49) 1. Means were various: capture of sons, wives, animals, a house siege, capture and deduction of the debtor in the house of the creditor, morenie the debtor hunger and its beating while last will not pay a debt [39 [40]. And, the creditor, samoyostojatelno the debt which has repaid from the debtor, could not be subjected gosuyodarstvennomu to prosecution (Laws Manu, VIII, shloka 50) [41].

Thus, on N.A.Krasheninnikovoj's expression, "authorising" the right strong », the state took under protection developed actual relations which preceded occurrence of concrete norm, zayokrepljaemoj subsequently in the law» [42]. It allows to approve about prisutstyovii separate ideas about a violence role in gosudarstvogeneze and pravogeneze in poyolitiko-legal thought of ancient India.

Both in Old Indian, and in drevnekitajskoj to culture (VII-III centuries BC) to questions of government and the people the special attention was paid. Polemic of sights at problems of the organisation and state functioning has predetermined formation of two basic philosophical schools - konfutsianyoskoj ("zhutszjao" - «the doctrine of the formed people») and legistskoj ("fa-tszja" - "zayokonniki"). On expression of h.p. perelomova, the specified schools aspired to odyonoj the purposes - «to an ideological substantiation strong centralised gosuyodarstva; their ideologists have made solving impact on formation teoyorii the states and the rights, theories on which basis all practice gosuyodarstvennogo a country government up to XX century» [43] was under construction. But, aspiring to one purpose,

The given schools leant against its various (opposite) methods dostizheyonija where as adherents of application of violent forms acted legisty, defending the formula «fa - shu - shi», opening validity legizma as doctrines about domination of the legal law. And, the guarantor of management on osyonove the given law was actually "power/violence". It is possible to present the given formula or so-called "triad" as follows (see sheyomu 1).

The scheme 1 - Bases ("triad") legizma in Ancient China

One of the largest theorists legizma was drevnekitajsky goyosudarstvennyj the figure and thinker Shang Jan (390-338 BC) Views koyotorogo have found reflexion in «to the Book of the governor of area Shang» [44] («SHan tszjun shu») - the filosofsko-political treatise which is an ancient monument of the Chinese culture. Leaning in the views on specified above "triayodu", Shang Jan on the first place put "fa" (law), an observance guarantee kotoyorogo is "shi" (actually, the power, violence), thereby, confirming prioritetnost ideas about a violence role as primary factor in occurrence, development and the further functioning of the Drevnekitajsky state. VeYOrojatnee everything, development of such sights was promoted by a epoch in which successfully put into practice policy Shang Jan. Really, the period with V on III centuries BC the Chinese historiography names the period of "Combating kingdoms» in which context the idea of a gain as the basic idea of strengthening of statehood moved ahead.


Shang Jan, unlike other philosophers of time, acted apoloyogetom aggressive war. Being the supporter of formation of the despotic state with the unlimited authority of the governor, Shang Jan considered war by a basis of creation of optimum conditions of strengthening of the personal power of the governor - «the perfect person» whom by means of violent ways moyozhet to force «the people in the state to be engaged in agriculture, and out of a kingdom to think of war» 1. Developing ideas of internal and external violence, Shang Jan accurately defined the appointment of the state expressed in achievement of two interconnected purposes:

1) submission of the people in the state (idea of internal violence);

2) people use (the ideal soldier) for a hegemony gain in all Celestial (idea of external violence).

Being the adherent of the despotic form of government, absolutizations of the imperial power, Shang Jan considered, that «only one sovershennomudryj the governor owns force of people, therefore it can extend philanthrophy and sprayovedlivost to all Celestial» [45 [46]. In the maintenance of the Roll of the third head 14 «UsYOtanovlenie the authorities» accurate definition of concept of the power as the blessings is made, kotoyorym «one governor» [47] disposes only. And, if the power rasporjazhayoetsja only the governor, it inspires trembling, but if it lets out the power from the hands, it is threatened with  destruction.

It is necessary to notice, that the treatise Shang Yana is the work directed on creation of the universal formula strong, successfully developing gosuyodarstva and a society. The Chinese philosopher has revealed also basic "parasites" who, in its opinion, could prevent normal functioning of a public life and were enemies of the state. So, in the Roll the first chapters 5 «the Reasoning on the people» to "parasites" concerned eloquence, sharp mind, "whether" (morally-ethical norms-principles), music, kindness,
Philanthrophy, appointment and promotion on a post virtuous людей1. According to what, Shang Jan considered: «There, where simultaneously suyoshchestvujut all these eight parasites, the people are stronger than the authorities. When the people are stronger than the authorities - the state weak.» [48 [49]. The given thought razviyovalas in the maintenance of the Roll of the fifth head 20 «How to weaken the people» where fiyolosof openly declared that the strong state is based on slayobosti the people. Shang Jan justified the forced violence over the people, priyovodja to own advantage rigid argument: « When people live in humiliation, they value eminence ranks; when they are weak, chtut official posts; when are poor, appreciate awards. If people operate by means of punishments, they serve with pleasure if them induce to war by awards, they preyozirajut death. Therefore the country, whose armies are used in battles, nayozyvajut strong »[50]. Similar thought Shang Jan confirmed and in the Roll the first chapters 4« Elimination of the strong ":" If the governor applies force, its people will combat bravely; if the governor wages war, its people bu -

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dut to make wise plans »[51].

That the state has kept the power and has achieved sovereignty in all Celestial, Shang Jan considered expedient system introduction «Awards and nayokazany». According to the Chinese thinker there is an interconnected chain of the phenomena: punishments generate force, force generates power, the power generates greatness, and greatness generates virtue. On the basis of the given thesis Shang Jan has come to conclusion, that virtue occurs from nakayozanija. The system «Awards and punishments» is accurately stated in the Roll of the fourth head
17 in which we find reasonings that severe punishments are luchyoshee means of suppression of harm and crimes. The essential moment, besides the doctrine about punishments, introduction of system of mutual responsibility which svjayozyvalis not only relatives, but also neighbours, the people occupied with a common cause, etc. Application of given system in army, in opinion Shang Yana, could iskoreyonit desertion in the ranks of soldiers was. Really, violent methods poyozvoljali to the governor «to hold all inhabitants of a kingdom in constant fear and a log submission» 1. Thus, submission of the people to the state force (the power of the governor) occurred by means of certain system of awards and punishments. Referring to experience of ancestors, Shang Jan confirmed thought that «put things in order in Celestial the one who first of all could put things in order in own country could only; the one who first of all has won the own people» [52 [53] could overcome the strong enemy only. The given thesis, in our opinion, podyotverzhdaet presence of idea of internal violence as factor of occurrence of the state in filosofsko-legal thought of the Chinese civilisation sootvetstyovujushchego the period.

Besides kontseptov internal violence, work Shang Yana reflect its orientations to external use of compulsion and violence - the thinker deyotalno developed plans of creation of ideal soldiers for finding gegemoyonii in Celestial. Similar ideas met still at early legistov, in chastyonosti, at Guan Jung (apprx. 720 BC — 645 BC) which in the treatise «Guan TSzy» specified, that «in the rich state soldiers are strong, at strong soldiers of war are victorious, and at victorious wars extend prede -

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ly the states »[54].

Shang Jan, allocating agriculture and war as two ipostasi thanks to which the state becomes strong and achieves prosperity, argued sledujuyoshchim in the image: «the State can reach calmnesses thanks to agriculture and
To war as well as the governor will be held in high esteem only thanks to agriculture and vojyone. On the state which loves force, it is difficult to attack. » 1. The thinker podyocherkival: the wise governor understands what to provide the sovereignty in podyonebesnoj it is possible only by means of soldiers, vovleyokat in army on the obligatory beginnings the people maximum quantity hence is necessary. Shang Jan paid attention that of predilection for music, study, eloquence, for mastering by other crafts, trade, and, accordingly, evasion from zemyoledelija and wars - the first steps to  destruction of the state. In this connection, the philosopher essence of good government saw in people division on voiyonov and grain-growers. After all, if population thoughts are turned to agriculture, it testifies to simplicity of customs, that, in turn, causes ease of a manipulation people, possibility them «to use out of the country» [55 [56]. And out of the country similar people become ideal soldiers for a gain: « DejYOstvitelno when people will be occupied all day long in agriculture they poyoljubjat the governor as native and will be ready to sacrifice a life for the sake of vypolne -

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nija its orders »[57].

Accordingly, Shang Jan did the basic emphasis on development of idea of external violence as factor of occurrence of the strong, invincible state where war was fixed assets of achievement of the given purpose. In the maintenance of the Roll of the third head 10 «war Laws» drevnekitajsky the thinker obosnoyovyval idea that war is useful only when it is directed on the external enemy, but excluded razvjazyvanie civil war in the state.

Describing strategy and tactics of conducting war, Shang Jan focused attention on force both own army, and army of the opponent. In the Roll of third chapter 13 «to Make strict orders» the philosopher continued the thought that «the state which will attack by means of force, sending armies in poyohod only once, receives tenfold benefit. About the state, poyo
Reading force, say, that it is the country which it is difficult to attack »1. Force poyooshchrjalas, weakness was despised, thus the strong soldier voprinimalsja as soyovershennoe the tool in achievement of territorial domination. Shang Jan neodnoyokratno came back to thought that formation at the people of love to war, to gains is domination pledge in Celestial. After all territorial gosyopodstva it is possible to achieve only by means of violence (idea of imperious violence), javyoljajushchegosja according to views drevnekitajskogo the thinker one of major factors of occurrence of the powerful state.

The concept of formation of the despotic state with the unlimited authority of the governor has found a significant amount of supporters in ¿Ôá®±ß¿Õ circle of philosophers and politicians. The main followers of philosophy and praktiyoki Shang Yana with steels SHen Bu-find fault (400-337 BC) and Han Fej (apprx. 280—233 BC) [58 [59]. Being the founder of a management skill ("shu"), SHen BuYOhaj, as well as Shang Jan, was the adherent of idea of formation absoljutistskoj the authorities of the governor as Supreme reference point and measure of all things.

Han Fej, similarly Shang Yana, was the supporter radical legizma owing to what much borrowed the teacher, «first of all, the doctrine about all silnosti laws; the concept of awards and punishments as the basic method upravleyonija the people; the doctrine about a primacy of agriculture and war over all others zanjatijayomi... Has created the own theory of government» [60]. In particular, Han Fej considered, that in formation of the strong state the important role the law approving the absolute power of the governor and legalizujushchy violence as the main means of maintenance of the power both in the state, and in proyotsesse plays gains of new territories. As well as Shang Jan, Han Fej in the znameniyotom treatise Han Fej-tszy (chapter 15) resulted the list of the basic "parasites" leading to easing and the subsequent  destruction of the state: restriction of the power of the governor, absence of respect for the law, bribery and a self-interest,
Unconscientiousness of officials, etc. In this connection, the thinker had been deduced the main formula of the strong state: «the governor — a stick, chiyonovniki — a drum»: «both the governor will strike, and the drum will begin to sound, differently cannot be and should not» 1. Thus, being the opponent konfuyotsianstva, Han Fej denied humanity in management and proved priyooritet forces (violence internal and external), inevitability of punishment, submission weak to the strong. Enthralled in internal frameworks gosuyodarstva and the people won from the outside should follow commands from above, accompanied compulsion and violence.

Philosopher Shen Dao (apprx. 395 to n.e. - apprx. 315 BC) adhered to such point of view and drevnekitajsky. It "closes" a chain of bases ("triad") legiz - ma, approving, that the centralised management it is possible to reach at pomoyoshchi the law which is put into practice by the power-violence ("shi"). To subordinate weights both in the state, and behind its borders, according to the Chinese thinker, it is necessary to possess three basic qualities: umeyoniem, wisdom and high position. And it put the last in a priority, considering, that thus can subordinate the power and ljuyodej clever, and talented.

Did not condemn idea of violence in formation of the strong state and Donne Jung-shu (apprx. 179—104 to n.) - konfutsiansky the philosopher supporting application legistskogo of a method of awards and punishments, considering it naiboyolee an effective remedy of submission and the subsequent management naroyodom. In the well-known treatise «CHuntsju fanlu» it placed emphasis that «sovershennomudryj, operating the state. Aspires to force to grow fond of the people something. When love, by all means and hate something, and it is possible to frighten the people by means of that he hates. And when there is what influence and frighten, it is possible to operate the people» [61 [62].

Kontsepty the specified philosophers about the violence factor in formation gosuyodarstvennosti have found a practical embodiment and became subsequently svoeobyoraznym the "application guide" used in the politician of governors of empires Tsin (221 BC) and Han (202 BC). Especially considerably given idea was shown in days of board of emperors of dynasty Han where the violence began to be propagandised as one of the major management methods by broad masses.

Thus, ideas of internal and external violence in a context geneyozisa and statehood functioning were popular in the doctrine kitajyoskih legistov. The last considered violence as a necessary element and a link between the power of the governor and a society. The law ("fa") traktoyovalsja as legal expression of application of imperious violence ("shi") for soyohranenija unlimited (absoljutistskoj) the authorities of the governor ("shu").

The idea pravogeneza in drevnekitajskoj legal thought, in a context of the theory of violence was considered through a prism classical legistskogo positivism where the right was defined as the norms established by the compulsory power of the state in the form of the law. According to what, the right arose only when there was a state. In other words, the state peryovichno, and the right - proizvodno from the state. Similar statement of a problem causes certain difficulties in consideration pravogeneza otdelyono from gosudarstvogeneza ranneklassovogo drevnekitajskogo societies (sobstyovenno, as well as investigated before an Old Indian society). About vozniknoyovenii the rights in society development (pravogeneze in the pure state) govoyorit it is difficult, as it (is right) is created by the state (a dominating top) for the purpose of suppression of resistance and operation oppressed, imposed power by by means of such means, as war and prinuyoditelnoe a pacification. On V.A.Chetvernina's expression, «it is constant dejyostvujushchy the violence device it is necessary to ruling class so far as, as nuzhyona the force providing a peace and steady order, ugodnyj to the correcting
To class. The norms providing such order, is and there is a right, and it always acts as the right strong »1.

Drevnekitajsky legistskaja the doctrine and practice have been directed on destruction of all moral, ethical standards and the rules regulating in due time initial relations of a sociopolitical hostel in Ancient China. The priority «nakazatelnogo the law» before others reguljayotivnymi the beginnings and principles «a red thread» passed in philosophical views drevnekitajskih the thinkers-legistov addressing to probleyomam gosudarstvogeneza of Ancient China. In a context spent issledoyovanija it is possible to approve about «authority of violence» in the course of occurrence, development and the further functioning of statehood and the right in drevnekitajskom a society.

Also as well as drevnevostochnaja, the ancient philosophy in research nasiyolija as factor the state - and pravogeneza has originally been based on the applied decision of concrete problems.

In the Ancient Greece in blossoming of filosofsko-legal thought (V - first half IV centuries BC) ideas of violence in a state and right origin appear in compositions of sophists of the first and second generation. As veryono has noted N.Azarkin, «in methodology sophists have proved as novato - ry» [63 [64]. If naturalistic philosophy representatives in knowledge of the legal phenomena were based on divine to "the nature of things», not giving value subjective fakyotoru sophists tended to the idealistic doctrine about otnositelnoyosti, convention and subjectivity of the human knowledge, levelling the objective maintenance of knowledge. The state sophists considered as uchyorezhdenie, created, first of all, for the blessing "strong", and the right, as sredyostvo protection of interests "strong" at the expense of suppression of interests of "weak". It is necessary to notice, that the given idea of sophists (especial second generation) otyo
lichalas from the state views of the majority of the Greek thinkers isyosleduemogo the period, for which «the state. There is a moral order of the world in which the human nature carries out the appointment. Only the person admits the state a being having the rights.» 1.

("Seniors") should carry to sophists of the first generation such izvestyonyh philosophers of an epoch of the Greek antiquity, as protagor from Abder, leontinets Gorgy, Gippy from Elidy, prodik Keossky, the Antifont and others, priderzhivavyoshihsja mainly democratic views. Sophists of the second pokoyolenija ("younger") concerned Evtidem, Dionisodor, the Floor and Alkidamant (ucheyoniki Gorgija), Frasimah, Kallikl, Likofron and other philosophers denying the moral beginnings in the politician. In our opinion, in a context investigated proyoblemy, special interest is represented by filosofsko-legal sights of sophists of "younger" generation.

One of the first value of violence in gosudarstvogeneze and pravogeneze, and subsequently and in state policy carrying out, has tried to consider Frasimah. He approved, that justice is that is suitable silnejsheyomu, that is to the one who is in power and establishes laws to own advantage, zayoshchishchaja, first of all, the interests. Reducing the right to force, the thinker recognised natural and necessary domination of force. Similar formula Frasimah has deduced and concerning the state in which the order was represented to it vyrayozheniem the necessary superiority of force/violence over powerlessness. Follows soyoglasitsja with N.Azarkinym characterising philosophy Frasimaha sledujuyoshchim in the image: « Essence of its position: at all boards force - bayoza vlastvovanija, «a legislative camouflage» [65 [66]. In this occasion intereyosen Socrat dispute and Frasimaha about a role, appointment, essence of the power and priyomenenii it of methods of violent character in management of a society (see table 1).

Table 1

Socrat positions and Frasimaha about a role, appointment, essence of the power

Socrat about the power Frasimah about the power
Was based on theoretical research Was based on practical examples
The power is an art, the person owning art - the governor operating for the good of subordinates The power - universal glavenyostvujushchee the means giving to the governor considerable advantages
The power is secondary - «the servant naroyoda», allocated, first of all, office functions The power is primary (iznachalna), a priori it is and was always
Force (violence) for the power - poyosledny argument in purpose achievement Force (violence) for the power - peryovyj argument in purpose achievement. Force is used for the edition of laws, vyyogodnyh only for ruling class
Keywords: reason, knowledge, true, equality, whole, the general, absoyoljutnoe Keywords: force (violence), will, interest, an inequality, private, individual, relative

Continuing dispute, Frasimah opposed Socrat approving, that the master not for itself searches useful, and for the subject: «the Truth actually is another's blessing: it is useful to the strongest and, on the contrary, is harmful podvlastyonym. Just gawks are commanded by a lie, and they do polezyonoe to the strongest and, serving it, spospeshestvujut to its blessing. Just is poyoleznoe to the strongest.» [67].

Being based on the arguments specified above in favour of violence or proyotiv it, Frasimah, unlike Socrat, unequivocally defined violence as soyovershenno the adequate form of expression of subjective human freedom. And by means of concept "strongest" it characterised governors of the states with various forms of government, whether it be democracy or tyrannies.

Other sophist Kallikl approved, that laws - the invention "slabosilyonyh", which большинство1, and the state - plot of crowd weak against dejyostvitelno strong. The philosopher specified, that the nature dictates laws, in koyotoryh the strong rules weak and, accordingly, costs above it: « PriYOrodnaja the truth consists in that everything, than own the weakest, belonged to the strongest »[68 [69]. Kallikl defended idea of the natural death of force against otriyotsanija the democratic form of government in which basis the principle ravyonopravija citizens laid. It is interesting, that terms« the best "and" the strongest »it opreyodeljal as words-synonyms. To similar opinion adhered Krity and Anti - a font, justifying the oligarchical form of government. They theoretically proved the given idea argument according to which for strong people the written law has no value, the strong personality has the natural death to trample on the written law, not to submit to it, to establish the praviyola games. The faithful thesis defended the Floor Agrigentsky, pupil Gorgija. In relations between people injustice, in soyootvetstvii with what is already initially put in pawn, it is better most to create injustice, realising the zhelayonija and the purposes, rather than to undergo injustice from others. The floor, defending tiyoraniju as ideal model of a political mode, justified, that sayomym an arbitrariness of the tyrant. According to the Floor Agrigentsky the tyrant had the right isyopolzovat violent methods, including right to kill, send in izgna -

3

nie and to arrive as will take in head [70].

About law and violence comparison it is spoken in dialogue between Alkviadom and its trustee Periklom who has been transferred by Socrat, and subsequently zapiyosan Ksenofontom. In particular, Alkviad asked Perikla: «That such violence and lawlessness? Not whether, when the strongest forces the weakest not ubezhdeniyoem, and by force to do what is necessary for it?... And what the crowd enacts, not having convinced sufficient people, and having gained over them the top force, is not faster nasiliyoem, than the law?» [71]. Answers to the given question have divided sophists into two poljaryonyh camp where one defined violence as the major factor of formation of statehood and legal system in whole (the given question proilljustriroyovan above), others, on the contrary, cultivated idea of education of members of a society in the spirit of civil virtues, doing conclusions about legitimacy and spravedliyovosti constructions of a democratic society. According to what, protivniyokami violence acted protagor, Gorgy, Gippy, Likofron, Alkidam Elejyosky, etc. For example, the preacher democratic ideas protagor in the rasyosuzhdenijah proved dependence of existence of the state participation of all its members (citizens) in human virtue in the form of justice, piety and judiciousness.

Thus, in blossoming of Ancient Greek filosofsko-legal thought the idea about violence as the factor the state - and pravogeneza, actually, as well as in drevnevostochnoj philosophies was not dominating. Nevertheless, naravyone with theological, patriarchal, is natural-legal («jusnaturalistiche - skoj») and other theories proving approaches to an origin gosuyodarstva and the rights, had the supporters. Ancient Greek philosophers - thinkers, addressing to violence, generally justified it ispolzoyovanie as main means in carrying out of a state policy, deduction of the power, the justification of idea of a class society where positions of "strong" were defended economically by a ruling class (the aristocratic top having
The rights-privileges), using violence as fixed assets for podavleyonija "weak" (a class oppressed - economically not free population).

In close relationship from the Greek there is also a Roman idea the state - and pravogeneza. Whether On well-aimed expression of Swiss jurist I.K.bljunch «from all classical antiquity Romans were the most ingenious naroyodom concerning right and state development; such value they dostigyoli not so much spirit, how many character. Therefore they had on the world much more influence rather than elliny» 1. On the other hand, it is impossible iskljuyochat influence of filosofsko-legal views of Ancient Greek thinkers on formation of ideas about the state and the right in Ancient Rome, after all the Roman lawyers in the general explanations of the state-legal phenomena followed ideas of the Greek philosophers.

The bright representative of the Roman school was TSitseron (II-I centuries BC). Recognising the state the higher product of human force, the thinker gave reason for it the following statement: «in what the person in such steyopeni does not come nearer to intention of gods, as in the basis and maintenance gosuyodarstv» where it compared the state to the person, and the head of the state with the spirit ruling over a body [72 [73].

Thoughts TSitseron has stated in known compositions «About gosudarstyove» "Dialogues", «About laws» in which, in our opinion, it is possible to track development of ideas about the violence factor in the state - and pravogeneze. The Drevnerimyosky philosopher has offered violence as phenomenon to divide on "fair" and "unfair" [74], having put forward thereby the thesis about «fair and blagoyochestivoj to war». In the composition «About the state», in particular, in dialogue intermeal Leliem and Stsipionom, TSitseron has opened the nature (genesis) of the state, having defined, that «the state is property of the people, and the people not any soediyonenie the people gathered somehow, and connection
Many people connected among themselves by the consent in matters of law and obshchnoyostju of interests (civil community) »1. But to care of the blessing of all obshcheyostva the"best"people should."Best"(strong) TSitseron opreyodeljal the people surpassing others by the wisdom, valour, muzhestyovom, and, according to the thinker, they should predominate over weaker which, in turn, should implicitly (willingly) poviyonovatsja to the first. In this connection, a monarchy on TSitseronu - the optimum form of government in the organisation of the political power of Rome in particular.

Interest for the present research represents stated in «the Book of the second» compositions «About the state» the story about an origin of Rome, about it istoyokah, so-called «the beginnings of the Roman people» where, in our opinion, the idea of violence in gosudarstvogeneze the Roman state reveals to the full. Speaking about Romule as the founder of Rome, TSitseron paid special attention of aggressive activity of the tsar in which process the next people have been subdued and the nearby earths (for example, capture Alby-Longs and murder of governor Amulija) [75 [76] are attached to Rome. Mythology of an origin of Rome, and takyozhe the aggressive policy characterising all development and funkyotsionirovanija of Roman empire, are, in our opinion, powerful argumenyotami in favour of violence consideration as important factor of an origin of this state. Several millenia later, JU. Lippert, in the sochineyonii "Cultural history" on an example of formation of the Ancient Roman state has specified in violent character of aggressive wars for the purpose of association and the subsequent expansion of territory of Rome. War, according to the researcher - natural process, requirement or even "craft" which occurred against so rapid development of mankind which was shown by Ancient Rome. But J.Lippert also specified in certain specificity, raskryvajuyoshchuju the purpose of carrying out of aggressive policy of Rome: «wars of Romans which were really inevitable, were waged actually for the termination of war,
For the sake of the world. Having forced one neighbour to enter structure of the «peace union», Rome always during too time got the new, even more dangerous neighbour. »1.

Thus, as well as in Ancient Greek philosophy the ancient Roman filosofsko-legal thought the theory of violence did not consider as prioritetyonuju the theory about a state and right origin. But, unlike drevnegreyocheskoj traditions, the Roman philosophers (in particular, TSitseron) external violence considered as certain initial, and at times the forced means in stayonovlenii statehood and legal system of Roman empire.

In the Middle Ages which we consider in frameworks hristiyoanskoj a western civilisation, the state - and pravogenez it was investigated in a context of the theological theory in which basis has been put bozhestvenyonyj character of an origin of the state and the right. The Catholic theology as specified V.S.Nersesjants, has been focused on the justification of postulates of belief by means of human reason [77 [78]. But, having priority positions, the theological theory was not unique; to it in a counterbalance many theories forming representations about an origin of the state and the right, including the theory of violence offering other sights on danyonye of a problem acted.

To violence as to a way of conducting struggle the thinker of Renaissance, the politician, diplomat Nikkolo MakiaYovelli (1469-1527) addressed in due time italyojansky. Its reflexions about the state and the right leant against practical experience of formation, development and the further functioning of the state and the right of Roman empire. Makiavelli regretted that soyovremennye to it politicians do not consider ancient history experience, after all eventually people remain all the same, and the basic institutes and javleyonija filosofsko-legal sphere are already known to mankind.

In «Reasonings about Tite Libya» Makiavelli defined two ways obrazoyovanija the states. The first variant when the states are formed (osnovyvajutyo
sja) natives, which for the sake of protection of from external dangers soyoedinjajutsja together. The second way, when the states are created so nazyvaeyomymi by "newcomers", who by means of violence (in particular, external) keep the native population in obedience. Makiavelli stood up for the first way of occurrence of the state and denied the second, considering, that the states based in this way, seldom do successes in развитии1.

Being the true representative of Renaissance, Makiavelli in all admired force. He confirmed the position krasnorechiyovym, pathos enough statement: «I think, that it is better to be otvazhyonym, than circumspect, for happiness - the woman; to subordinate him seyobe, it is necessary to address with it roughly; it ohotnee is given to people sposobyonym on violence, rather than to people of cold calculation: to it it predpochyotitelno showers with the blessings youth hot, reckless, uvleyokajushchujusja and more brave [79 [80]. Discrepancy in sights - spetsificheyoskaja line of the Makiavelli-philosopher. V.S.Nersesjants who specified paid attention to the given fact:« In history of concepts of the state and the right will be such which would cause so furious disputes of their adherents and opponents, well-wishers and radical critics as political ideas of well-known Italian thinker Nikkolo Makia - velli »[81] a little. And it is valid, considering external violence as one of maloyoverojatnyh ways of occurrence gosudarstvogeneza, Makiavelli vnutrenyonee considered violence as the basic way of deduction of the power in funktsionirujuyoshchem the state. In the well-known treatise« Sovereign »the philosopher nastavyoljal:« It is possible to combat in two ways: leaning against the law or with pomoyoshchju violence. The first way is applied by people, and the second - wild zhiyovotnymi, but as the first often happens insufficiently, it is required priyobegat to the second. Therefore a sovereign should be able to imitate and to an animal, and cheyo
loveku »1. The Italian thinker, putting state (etatistskie) inyoteresy above interests public, defined violence as a way of struggle and means of achievement of the purpose. The violence in this case had, according to Makiavelli, progressive character, thanks to it the society in the development moved forward, aspiring to more perfect forms of the social organisation. According to what, the state has the right ignoriyorovat existing laws, morals, and, on the contrary, to the development and self-preservation can apply violence as one of compulsion forms:« It is necessary to be ready force to force to trust those who has lost belief. Moisej, Kir, Tezej and Romul not for long could support observance of the zakoyonov if were unarmed »[82 [83]. It is necessary to notice, that idea Makiavelli about violence as means of achievement and power deduction in the state (on priyomere Ancient Rome) has in many respects something in common with similar idea Shang Yana, but the Italian philosopher does not have also hint on pathos of struggle against the people which was traced in sights drevnekitajskogo the thinker.

Thus, research of filosofsko-legal sights of N.MaYokiavelli in a context gosudarstvogeneza and pravogeneza allows to conclude: the Italian thinker perceived violence as the factor of occurrence and, further, an element of the mechanism of functioning of the state and the right.

Thus, genesis of the theory of a violent origin gosudaryostva and the rights, received the doktrinalnoe a substantiation in XIX century, we usyomatrivaem in philosophy of the Ancient world and the Middle Ages. Origin of ideas of internal and external violence in their conceptual display has occurred in the doctrine Chinese legistov, considering violence as the primary source vlayosti the governor. Chinese philosopher Shang Jan saw state appointment in submission of the people in the state and use of the people for a hegemony gain in all Celestial. The right in legistskom positivism was defined

As the norms established by the compulsory power of the state in shape zakoyona, that is the right it was defined as the phenomenon derivative of the state.

In Ancient Greek filosofsko-legal thought the idea about violence as fakyotore gosudarstvogeneza and pravogeneza was not dominating, but drevnegreyocheskie philosophers-thinkers proved violence use as main means of carrying out of a state policy, deduction of the power, population suppression. The special attention to the specified problematics was given by sophists so nayozyvaemogo "younger" generation. The Roman philosophers external violence rasyosmatrivali as initial and, frequently, the forced means of formation of statehood and legal system of Roman empire.

The thinker of the late Middle Ages N.Makiavelli could not ignore a violence problem in a context gosudarstvogeneza and pravogeneza. In particular, the Italian thinker considered violence and as the factor of occurrence of statehood, and as a necessary element of the mechanism of functioning of the state and the right.

In the Ancient world and the Middle Ages the first representations about violence as the tool of historical evolution, its special role in the course of statehood occurrence were generated. These ideas have acted as basis for development and institutsionalnogo registrations of theories of violence during later period.

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A source: BAJRAMOV Arsen Abdulkadirovich. THEORIES About VIOLENT ORIGIN GOYOSUDARSTVA Both the RIGHTS: GENESIS And EVOLUTION. The DISSERTATION on competition of a scientific degree of the master of laws. Belgorod - 2015. 2015

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