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Pravoponimanie in history History of politiko-legal politiko-legal thought.

Thoughts testifies, that The right is the phenomenon many-sided and multidimensional, it can be considered from the different points of view, in various planes - in is positive-rationalistic, appreciably-sociological, Historical, moral, positive and so forth In this number for us positive, ethical and sociological aspects pravoponimanija are especially essential.
Historically the sights considering the right as justice have appeared the first. The right purpose - general welfare, and it just also associates with justice (Socrat, Platon, Aristotle). Thus legality and justice in an ideal should совпадать47. In relation to mentioned concepts are related are understanding of the right as "law of true reason", put forward TSitsironom (106-43 to n.). He believed, that the original right is the true reason which is in the consent with the nature. It is universal, invariable and eternal, it cannot neither be abolished, nor to change. It is the certain mind introduced by the God to specify to people correct behaviour, and also to punish and prevent неправильное48. The Roman lawyers (Guy, Ulpian, Paul and dr) considered the right as the phenomenon multidimensional. The Latin term jus was understood also as the natural death (jus naturale), and that later (but not in Ancient Rome) began to name a positive law (laws, senate decisions, decrees of emperors and proch) 49. Thus the Roman lawyers did not separate and did not contrast the natural death and the civil right or the right of the people. Apparently, the natural death really regulated relations in a society. "Word" the right ", - was explained by ancient Roman lawyer Paul, - is used in several senses: first," the right "means that always means that always is fair and kind, what natural death. In other sense the right is that what civil right is useful for all or much in any state. Not less correctly in our state the right is called jus honorarum (pretorskoe the right)" 50. Pravoponimanie the Roman lawyers it was characterised, on the one hand, by allocation of a certain moral and valuable reference point - the natural death, and with another, - detailed working out of positive legal concepts and categories. Rannehristiansky writers (especially apostle Paul) developed the doctrine about a law and good fortune parity. The law exists for satisfaction of terrestrial needs of the person, but it only then makes sense, when is got the Christian moral beginnings. Blazh. Avgustin, addressing to legal questions, discriminates laws natural, divine and human (positive). Foma Akvinat (1224-1274) barks the most finished is natural-legal concept from the point of view of Christian theology. It considered the right as the Divine law. This law is ierarhichnym, consisting of the cognizable and incognizable, eternal, natural, human law, lex divina. The politiko-legal thought of New time has generated the is natural-legal doctrine in its classical kind. For representatives of this direction (G.Grotsija, J. Lock, T.Gobbsa, ZH. Russo, S.Monteske and dr) "essential interest represented as a theoretical substantiation of that new pravoponimanija which would correspond to those socially - historical realities of an epoch of transition from feudalism by capitalism and statements of a bourgeois society, and regular scientific working out on the basis of such pravoponimanija fundamental principles, principles and forms of an interstate life and the international dialogue" 51.
If to sum up the basic lines of it pravoponimanija they are reduced to the following. 1) Division of the right on "natural" and voleustanovlennoe. The Natural death is defined as "the instruction of sensible reason", Depending on character and conformity of this or that action to this "instruction" it admits either morally useful, or morally harmful, shameful (G.Grotsy). A source of this natural death is the natural reason, some kind of objective law. 2) Presumption of a primitive (natural) condition of mankind. To order chaos in which there is a right. The right arises as result of free will (contract), in which result a part of the sovereignty the person preredaetsja the public power. This contract is indissoluble and neotmenjaem. 3) Positive laws can correspond to the right (legal laws), and can mismatch it (not legal laws). Occurrence of German classical philosophy became a following stage in development of the is natural-legal theory. In the centre of the doctrine of I.Kanta there is the human person possessing absolute freedom. The will is an ability of the person to free action on the basis of the higher unconditional principles. These principles give in to an explanation and a substantiation. These norms are put in pawn in reason as aprioristic internal prompting Generated by reason of norm are an imperative, i.e. The obligation expressing objective compulsion to an act... The Edging allocates conditional and unconditional (categorical) imperatives. The edging allocates for the foreground not utilitarian utility, and a debt. The Kant categorical imperative is reduced to a principle "arrive in relation to another how you would like, that they arrived in relation to you". The edging formulates a categorical imperative as follows: " Arrive only according to such maksime, being guided which you at the same time can wish, that it became the general law "52. Following to a categorical imperative, on the Edging, is capable to overcome contradictions between people, garmonizovat relations in a society. Proceeding from the mentioned parcels, the Edging defines the right as set of conditions at which an arbitrariness of one (person) is compatible to an arbitrariness of another from the point of view of the general law of freedom '. Having specified "mechanism" of formation of the right (through following to a categorical imperative), the Edging fills this imperative estestvennopravovym with the humanistic maintenance. "Arrive so that you always concerned mankind and in the person, and in the name of everyone another also as to the purpose and never otnrosilsja to it as to means" 53. Of-century-F. Gegel carries the right to the phenomena objective духа54. It pravoponimanie does not keep within any more is natural-legal frameworks as Gegel notices raznourovnevost and many-sided nature of the right. Gegel discriminates philosophical and applied concepts of the right. Philosophical concept of the right Gegel names "idea of the right". A right Starting point, on Gegel, the will which is free is, and freedom, in turn, is essence and right appointment. Gegel defines freedom as the realised necessity, she assumes and nesvobodu, subordination to nature and society laws. The right defines sphere of freedom of the person, limited to freedom of others (this thought is apprehended from the Edging). " Definition of limits of freedom and nesvobody - here that such right. In the developed legal systems these limits are established by a detailed regulation of all aspects of activity. In not developed absence of detailed working out in any measure is compensated by the general principle "be the person (person) and respect others as persons ' 4. Applied concept it is right important for practical jurisprudence and represents set of the positive norms operating in this or that country. From the formal point of view the behaviour rule then gets quality of the rule of law when it is recognised by the state. At the same time Gegel, discriminating the right and the law, does not contrast these concepts though also divergences between them in historical the validity and are not excluded. Their interrelation it is possible to express universal gegelevskoj the formula "all valid reasonably, all reasonable is valid" 2. In first half XIX century has arisen novee a world outlook direction - positivism, - which main representatives were O.Kont (1798-1857) and J. Austin (1790-1859). Kont's representation about the right recognised that subordination of the moral and public phenomena to inevitable laws does not contradict freedom of the person, true freedom consists in as more as possible free to follow the learnt laws corresponding to this or that phenomenon. Any human right is a senseless anarchy if it does not submit defined закону3. Austin considered, that the right should be delimited from the adjacent phenomena (morals, religion and proch), thereby it identified the right and закон4. Kont's positivism and Austin in the further development politiko - legal thought breaks up at least to two directions: I) standard positivism (its extreme form - the theory of the "pure" right of G.Kelzena) and 2) sociological jurisprudence. The positive direction in understanding of the right has been developed R background Ieringom (1818-1892). Iering considers the right in teleologic aspect, understanding as the subject tselepolaganija in the right everyone acts not, but the organised society is only state. Recognising, unlike "pure" normativistov, mnogourovnevost the rights and a polysemy of its concept, Ierning believed, that the state - a unique source права55. The further development of positivism in jurisprudence is connected with the theory of "the pure right" G.Kelzena (1881-1973). A subject of studying of theory of law, it agree Kelzenu, it should be limited to legislative norms, their structural elements, their mutual relations, and also the law and order and its structure. The pure theory of law refuses in advance informative efforts concerning all elements which are alien to a positive law. Theory Kelzena spends differentiation of a "pure" positive law and transcendental justice by an exception of last theory of an object of research права56. Sociological direction - other branch of positivism. Its representatives (E.Erlih, L.Djugi, G.Kantorovich and dr). So, for E.Erliha (1862-1922) centre of gravity of legal development lays not in the legislation, not in judgements, not in legal science, and in the society. The internal order of human relations, instead of legal establishments, define human destiny. Family existence precedes family law occurrence, contract existence - accordingly, contract and t. д57. J1. Djugi (1859-1928) is the author of the concept solidarizma which essence is reduced to that people cannot satisfy separately the requirements and consequently their integration and association is the indispensable social law. The right also is an unbiased fact, an element of public solidarity. At last, it is necessary to mention about Marxist pravoponimanii as the given Politiko-legal doctrine has till now huge influence on domestic jurisprudence. K.Marks and F.Engels recognised that the right it is impossible to understand from itself, it is the form of relations of production. The right has klassovo-strong-willed character. Thus, the classical Marxism represents the right within the limits of a sociological direction. However, in further, Century ILenin, developing Marksovo the doctrine about proletariat dictatorship, putting it into practice, understood the state and the right a little mehanisticheski, using terms "car", "device" and so forth the Right and the state began to be considered not as the independent phenomena of social being, and as certain tools of class domination. On this soil nigilistic tendencies in the relation to the specified phenomena began to develop. Besides, specified tendencies should expose on the foreground normativistsky the approach which and remains to this day at us господствующим58.
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A source: Varyas Mikhail Yuryevich. the state in the romano-German legal system / the Dissertation. 2003

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