The development of political and legal thought in Western Europe in the 19th century
As a result of the study of Chapter 11, the student must:
know the main trends, concrete historical patterns of origin and development, the content and specifics of the notions of the state and law in Western Europe in the 19th century;
• be able to determine the place and role of political and legal representations in Western Europe of the XIX century. in the context of world state-legal history, to orient in the modern approaches to the interpretation of views on the state and law of G. Hugo, F. K. Savigny, G. F. Puchta, B. Constant, J. Bentham, O. Comte, K. Marx and F. Engels, other political thinkers of this period; to reveal the system of connections of political and legal theory with the historical situation in the country and the interests of various social groups of society;
• own method of analyzing and assessing the role of ideas about the state and law G. Hugo, F. K. Savigny, G. F. Pukhta, B. Konstant, I Bentham, O. Comte, K. Marx and F. Engels, other political thinkers of this period in the subsequent evolution of world political and legal thought.
Historical School of Law. G. Hugo, F. K. Savigny, G. F. Puchta
At the end of the XVIII century. in Germany a special direction of scientific and legal thought arose, which by the first half of the 19th century. became one of the most significant and influential in state-legal thought and in legal science.
At the center of their theoretical and cognitive research founders of a new direction of legal thought raised the question of how the law arises and, accordingly, what is the history of its inception and development. Therefore, this direction was called the historical school of law.
Its ideological and organizational-scientific design is associated with the activities of outstanding German jurists G. Hugo, F. K. Savigny, G. F. Puchta.The main object of the critical analysis of the historical school of manners chose the natural legal doctrine that preceded it, proving the need for a radical change in the medieval political and legal system and the adoption of laws by the state that would meet the requirements of the mind, the nature of man, and in fact - the urgent social needs. Representatives of the historical school of law criticized, first of all, the thesis of the natural-legal school on positive law as an artificial construction created by the authorities. From the point of view of the historical school, the right arises spontaneously, and its origin is not due to the discretion of the legislator. Representatives of the historical school of character formulated clear provisions on the organic connection and continuity in the development of the people and state, developed the idea of the nation as a "collective individuality", suggested that the main creative force in history is the "people's spirit". It was within the framework of the historical school that for the first time in classical jurisprudence concepts were formulated about morality as a continuously developing historically conditioned phenomenon. Many Western scholars emphasize the merits of this school in its struggle against the abstract rationalistic tendencies of natural law, point to the significance of new methods of studying the historical development of law and its most ancient sources.
In the United States legal literature, the importance of the historical school of law is underestimated; even the programmatic work of Friedrich Carl von Savigny "On the vocation of our time to legislation and jurisprudence" (1814) has not yet been translated into United States. The main studies date back to the 19th century. - this is, first of all, the doctoral dissertation of PI Novgorodpep, as well as the work of SA Muromtsev and E. N. Trubetskoi.
The founder of the historical school of law was Professor Göttingen University Gustav von Hugo (1764- 1844). After graduating from the classical gymnasium in Karlsruhe, in 1782 he entered the law faculty of the University of Göttingen. After graduation from the university course, Hugo was appointed as the tutor of Prince Anhalt-Dessau; in 1788, he received a doctorate in law at the University of Halle.
In the same year, Hugo was pushed back to Göttingen as an extraordinary professor of law; in 1792, he became an ordinary professor of this university, and more than 40 years will teach there civil and Roman law.
The main provisions of his concept Hugo set out in the works: "The textbook on the history of Roman law" (1790); Textbook and anthology of classical pandemic law (1790); The textbook of natural law as a philosophy of positive law, especially private law (1798).
In these works, the scientist substantiated and showed that jurisprudence consists of:
a) of legal dogmatics, which deals with the current (positive) law and represents a "legal craft", operating with empirical knowledge;
b) philosophy of positive law - "a reasonable basis for scientific knowledge of law", i.e. academic jurisprudence & quot ;;
c) history of law, which just proves that the law develops historically, and is not created by the legislator.
In the Natural Law Textbook ... Hugo criticizes the main provisions of natural law theory.
The scientist categorically rejects the concept of a social contract, believing that such a treaty is practically impossible, since millions of strangers can not enter into an agreement and agree on "eternal submission" institutions, which they can not judge yet, as well as about obedience to people who are not yet known to them.
According to Hugo, state power and law arose in different ways.
He believed that law is not an artificial invention, but a natural result of a long historical development. The thinker was the first to proclaim the idea of an original development of law and the first to compare it with the development of language and people's mores. The scientist argued that just as language is not established by a treaty, it is not imposed by someone's instructions and is not given from God, so the law is created not only (and not so much) thanks to the legislator, but through independent spontaneous development. The law, he stressed, is not only the establishment of the state, because, regardless of the legislative power, from the ancient times, customary law exists and develops. The law develops like the rules of playing chess, billiards or cards, where in practice, often there are situations that are not yet prescribed by the established rules. Historically established custom is the true source of law.
Hugo opposed the identification of law and law. He understood the law as the rules adopted and used by the people - the law, emanating from state power, can often be non-applicable, i.e. dead & quot ;. In this regard, the thinker gave an example with the renaming of streets in Göttingen, when each new government changed the street names, and residents persistently used the old, familiar names. Pointing to this analogy, the scientist noted that a legislator who does not want to reckon with the natural historical realities of the development of law is doomed to impotence, for: 1) he simply can not break the strength of age-old traditions; 2) he should not strive for this, because in them he can find a firm support for his own power.
According to Hugo, acts of the legislature only complement the positive law; the very same positive law is derived from the law of the ordinary, and this latter grows from the depths of the "national spirit", the depths of the "popular consciousness" and the like.
Based on these initial assumptions, the scientist categorically protested against any legal reforms, considering his main value of law to be its inviolability. He considered the key argument in favor of preserving the old order the habit of people to the already established norms, believing that only a stable, unshakable right can fulfill its main task - to establish a strong social order.
The second largest representative of the historical law school was a prominent German jurist and historian, professor at the Berlin University Friedrich Carl von Saviny (1779-1861).
He came from an old noble family. In 1795 he entered the University of Marburg, then studied for a while in Goettingen. Defending the thesis on the topic "About the totality of crimes", Savigny received the post of associate professor of the Department of Criminal Law at the University of Marburg. After 1800, the main sphere of his interests were civil and Roman law. In 1810, at the invitation of V. Humbold, Savigny became head of the law faculty of the newly created University of Berlin. From 1842 to 1848 he held the post of Minister of Justice of Prussia, taking part in the creation of drafts of the Uniform German Bill of Exchange and the PUnited States Criminal Code, which significantly influenced the subsequent development of German law.
Essential work: Ownership right (1803); "About the calling of our time to law and jurisprudence" (1814) and the six-volume "The system of modern Roman law".
The reason for Savigny's active positioning as a supporter of the historical law school was the publication in 1814 of a book by Anton Friedrich Justus Tibo, professor of the Heidelberg University, "On the need for" universal civil law in Germany, "which advocated the idea of codification of law and for the purpose of creating an all-German civil code for this purpose in the shortest possible time; Thibaut believed that this code should be based on the same rational principles as the French Civil Code of 1804 (the Code of Napoleon). This work sparked a heated discussion in German legal circles. Savigny, who wrote the antithesis work "On the vocation of our time to legislation and jurisprudence", did not stand aside either. In it, the idea of rapid codification of German civil law on the basis of French law was criticized as unfounded and anti-national. Savigny generally did not deny the need for codification of German law, which suffered from particularism, but saw the possibility of its implementation only after the creation in Germany of a single "organically developing legal science".
The starting point of Savigny's concept was the denial of any participation of the free will of man in the development of history in general and of law in particular. The development of law, the scientist believed, is a process as necessary and unmanageable as the development of the natural world. The dynamics of law are akin to the development of an organism from its embryo, and therefore the entire history of law is a slow, smooth unfoldment of that substance, which, like a seed, is initially resting in the soil of the national spirit.
The thinker considers the development of law as an exclusively national process and categorically excludes external influences and foreign borrowings. He believed that the right of all peoples developed historically, as well as the language of the people, their customs and political structure.
Savigny distinguishes three stages of organic development of law:
1) at the first stage, law exists in the minds of the people as "natural law" and acts in the form of customs; it finds a formal expression in the symbolic actions that accompany the establishment or termination of legal relations.
2) In the second stage, developing along with the people and their culture, the right becomes the subject of processing by legal scientists, without losing, however, the connection with their roots - the common belief and tradition of the people. Therefore, lawyers, according to the scientist, are not the creators of law, but only the spokesmen of the national sense of justice; they develop legal concepts, generalizing what has already arisen in practice. This is how scientific right & quot ;;appears.
3) in the third stage, the law is sanctioned by the legislator. The legislator should not invent any new norms that did not exist before; its task is to collect, bring into the system and give a precise formulation to the norms of law that have already developed in the minds of the people and are expressed in the form of customs.
This way of development of law Savigny considers ideal. However, life's realities compelled the thinker to recognize that a person's free activity can interfere with this natural natural process - in particular, he recognized the possibility of the formation of a state by conquest. Affirming the naturalness of the development of law from the "depths of the national spirit", the scientist recognizes the possibility of rejecting the legislator from this normal path; Thus, willy-nilly Savigny recognizes the known artificiality of state-legal phenomena. At the same time, scientists note that thanks to Saviny, the idea of lawful development of law, expressed by Montesquieu, was established in the jurisprudence of modern times.
The follower of Savigny was his student Georg Friedrich Pucht (1798-1846), who was also a professor at the University of Berlin and made a significant contribution to the development of the historical school of law.
He was born in the family of the judge Wolfgang Heinrich Puchta, and under the influence of his father took up jurisprudence. After graduation, he taught law in a number of German universities, until he finally linked his fate with the University of Berlin, where he worked until the end of his life. He was a state adviser and a member of the commission for the reform of PUnited States legislation.
The main works: "Customary law" (1833); Pandemic Textbook (1838).
Pukhta, after other representatives of the historical school of law, wrote about the natural self-development of law, which follows from the spirit of the people as well as language and customs.
The original form of law is a scientist calling a custom derived from the people's consciousness. Then, to express customs in a solid form (ie, in order to fix what the common will of the people requires), legislation is created. Next comes the jurisprudence, i.e. scientific law. Jurisprudence reveals the legal provisions lying in the depths of the national spirit, not expressed clearly either by custom or law.
The difference between scientific law and its other forms the thinker saw in the fact that this right is not provided by any external authority. The need to apply to scientific law, for example, judges, arises when they can not find the rationale for their judgment in other forms of law: "Often the judge has to discuss relationships that are not strictly regulated by customary law or legislation."
According to Pukhta, the legislator and lawyers do not create the rule of law, but only contribute to the disclosure of various aspects of the national spirit. Law and the state result, ultimately, from the divine will through the people's will - as an expression of the people's spirit. Therefore, the scientist believed, it is useless to artificially design and offer to people this or that invented legal system, since it is not created from the history of the people's spirit itself, it can not be nurtured by society. Right, as a living organism, is inherent in organicity, which is expressed in the fact that the stages and rhythms of the development of law coincide with the course of the evolution of people's life. "It can be expressed in one sentence: the right has a history."
In his work, "Common Law Pukhta proves that the legal custom is a completely independent form of law, independent of the recognition by the legislator. The source of its binding force stems not from the sanction of the supreme authority or the duration of application, but from the "popular views", i.e. people's sense of justice. By itself, the custom does not create a new legal norm, it only consolidates what has already formed in the minds of the people as an obligatory rule for execution. But such importance Pukht recognized only by the customs of the whole people. Meanwhile, as critics of the historical school of law correctly pointed out, customs are almost always formed either in a separate locality or within an individual social stratum.
The historical school of law was formed by the influence of processes taking place in the law of late medieval Europe, when the reception of Roman law required historical analysis of legal material. In connection with this, this theoretical direction contributed to the formation of a historical method in legal science; and historicism as a method brought to life a new science - the history of law.
The historical school proposed to consider law as a continuously developing phenomenon that does not know the point of rest, as social matter mediated by the collective legal consciousness of the people. Representatives of the historical school regarded the law as a socio-psychological phenomenon existing in the context of national culture as part of a national culture in which the unity of the source (the people's spirit) informs unity and all other elements.
To the legislator the historical school of law assigned the role of observer, believing that it is the organic development of law in accordance with the spirit of the people that allows preserving a continuous legal tradition.
Thanks to the efforts of the historical school, XIX century. in the development of political and legal thought and legal science is often called the historical age.
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