History of political and legal doctrines: lecture notes - Machin I.F. Course program

History of political and legal teachings: lecture notes. Machin I.F.

M.: 200 7. - 208 p.

The direct passing of an exam or test, but any academic discipline is always preceded by enough short period when the student must concentrate, systematize their knowledge. In computer terms, he must "bring information from long-term memory into operational memory", make it ready for immediate and efficient use. The specifics of the period of preparation for an exam or test is that the student no longer studies anything (there is simply no time for this): he only remembers and systematizes what he has learned.

The proposed manual will help students in solving this particular problem in relation to the course "History of Political and Legal Doctrines".

The publication is intended for students of law schools.

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CONTENT
Preface 5
Topic 1. Formation and development of political and legal ideology 8
Topic 2. Political and legal doctrines in Ancient Greece 18
2.1. Political and legal views of the sophists. 19
2.2. Plato's doctrine of the state and laws 23
2.3. Political and legal doctrine of Aristotle 30
2.4. The doctrine of Polybius about the forms of the state 35
Topic 3. Political and legal doctrines in Ancient Rome 38
3.1. Political and legal doctrine of Mark Tullius Cicero 38
3.2. Roman jurists about law and its types.42
3.3. Political doctrine of Aurelius Augustine 45
Topic 4. Political and legal thought of the Middle Ages 49
4.1. The doctrine of Thomas Aquinas on law and the state. 49
4.2. Political and legal doctrine of Marsilius of Padua. 54
Topic 5. Political and legal teachings of the Renaissance and Reformation 59
5.1. The political doctrine of Piccolo Machiavelli 60
5.2. The Political Doctrine of Jean Bodin 63
5.3. Political and legal ideas of early socialism
Topic 6. The emergence of theories of natural law in Western Europe 17th century 70
6.1. The teachings of Hugo Grotius on the state and law. 70
6.2. The Political Doctrine of Thomas Hobbes 74
6.3. John Locke's doctrine of law and the state. 78
Topic 7. Political and legal thought in France XVIII century 81
7.1. Political and legal program of Voltaire 82
7.2. Political and legal doctrine of Sh.L. Montesquieu. 86
7.3. Political and legal doctrine of Jean-Jacques Rousseau. 92
7.4. Political and legal doctrine of Morelli 98
7.5. Political and legal views of Gracchus Babeuf and other participants in the "Conspiracy for Equality" 102
Topic 8. Political and legal doctrines in Russia in the 18th century 105
8.1. F. Prokopovich and V.N. Tatishchev about state and law. 106
8.2. Political and legal doctrine of the Council of Europe. Desnitsky
8.3. The teachings of A.N. Radishchev about law and state. 113
Topic 9. Political and legal thought in Germany at the end of the 18th - early XIX century 117
9.1. Immanuel Kant's doctrine of law and the state. 117
9.2. Political and legal doctrine of Georg Wilhelm Friedrich Hegel 122
Topic 10. Historical School of Law (Gustav Hugo, Friedrich Carl Savigny, Georg Friedrich Puchta) 131
Topic 11. Political and legal thought in Russia in the late 18th - early 19th centuries 136
11.1. Liberalism in Russia. Political and legal projects of M.M. Speransky 137
11.2. Political and legal views of the Decembrists 142
Topic 12. The emergence of legal positivism in jurisprudence of the XIX century. John Austin 147
Topic 13. Liberal political and legal doctrines in Western Europe in the first half of the 19th century 150
13.1. Political and legal doctrine of Jeremy Bentham 150
13.2. Political and legal doctrine of Benjamin Constant 154
Topic 14. The main directions of socialist political and legal thought in the second half of the 19th century in the West 159
14.1. Political and legal doctrine of Marxism 160
14.2. Political and legal doctrine and the program of social democracy. Ferdinand Lassalle 166
14.3. Political and legal theory of anarchism 168
Topic 15. Political and legal doctrines in Germany in the second half of the 19th century 174
15.1. Sociological theory of law R. Iering 174
15.2. Political and legal doctrine of G. Jellinek 178
Topic 16. Political and legal doctrines in the West in the XX century 182
16.1. Sociological theory of law by E. Erlich 182
16.2. The Political and Legal Theory of Solidarism by Leon Duguit 186
16.3. Psychological theory of law L.I. Petrazhitsky 189
16.4. Normativist theory of law and state G. Kelsen 193
16.5. The Sociological Jurisprudence of Roscoe Pound 196
16.6. Realist School of Law in USA 198
16.7. The Neo-Thomistic Theory of Law by Jacques Maritain 201

The history of political and legal doctrines is an independent scientific and educational discipline of both historical and theoretical profiles. Within its framework, a specific subject is explored and covered - the history of the emergence and development of theoretical knowledge about the state, law, politics and legislation.

By themselves, political and legal doctrines are essentially various forms theoretical expression and fixation of historically emerging and developing knowledge, those theoretical concepts, ideas, provisions and structures in which the historical process of deepening the knowledge of political and legal phenomena finds its expression

The connection within the framework of a single legal discipline of political and legal doctrines is ultimately due to the close internal relationship of political and legal phenomena of the corresponding concepts, which is especially clearly visible from the specific subject-methodological positions of legal science as a single science of law and the state.

To the above, it must be added that the political teachings of the past are presented in the subject of this discipline not as the history of state studies, but in the form of relevant theoretical studies of the problems of the state as a special political phenomenon and institution in the broad context of other political phenomena, relations and institutions.

The same applies to the legal thought of the past, which is covered in this discipline not in the form of the history of jurisprudence, but mainly in the form of theoretical concepts rights and legislation, which highlight the nature, concept, essence, value, functions and role of these specific phenomena public life

Although the history of political and legal doctrines is a legal discipline, nevertheless, philosophers and representatives of political thought made a significant contribution to its development (Socrates, Plato, Aristotle, Thomas Aquinas, Thomas Hobbes, Hegel, Nietzsche, Vladimir Solovyov, Nikolai Berdyaev and others).

Of particular note is the originality of the subject of the history of political and legal doctrines in comparison with the subjects of other legal disciplines of theoretical and historical profiles. Unlike the subjects of legal sciences that study the history of state and law, the subject of the history of political and legal doctrines is not the historically emerging and developing political and legal institutions and institutions, but the corresponding forms of their theoretical knowledge. At the same time, the interconnection and mutual influence of the history of political and legal ideas and doctrines, on the one hand, and the history of state-legal forms, institutions, and institutions, on the other, are obvious. Without knowledge of the history of the state and law, it is just as impossible to understand the specific content of the relevant political and legal theories, just as it is impossible to scientifically illuminate the historically developing political and legal reality without the corresponding theoretical provisions and concepts.

In relation to the general theoretical legal sciences, the history of political and legal doctrines acts primarily as a historical discipline, in its subject focused on the study of the history of political and legal theories, patterns historical process the emergence and development of theoretical knowledge about the state, law, politics, legislation.

In the complex process of interrelations in the legal science of historical and theoretical disciplines, the history of political and legal doctrines plays a significant role as one of the important historical and theoretical prerequisites for the development of modern political and legal knowledge, improving the theoretical development of problems of state and law.

Periodization of the history of political and legal doctrines

The problem of periodization of the history of political and legal doctrines is closely connected with the problem of periodization of the history of mankind itself. There are several approaches here. The first approach - historical - was proposed by French historians of the 17th-18th centuries. In accordance with it, history was divided into the following eras: the ancient world - from the moment of the emergence of civilization until the fall of Rome under the blows of the barbarians in 476 AD; e., the Middle Ages - from the 5th to the 15th centuries, the Renaissance - the 15th-16th centuries, the new time - the 17th-19th centuries. The Renaissance was often interpreted and is now interpreted not as an independent era, but either as a late stage of the Middle Ages, or as an early one. preparatory stage new time. 20th century called modern times, or modernity.

The conditionality of such periodization is especially obvious when it is transferred to the countries of the East - Egypt, India, China, Persia, Arab world etc. A simple acquaintance with their history shows that each of them had its own antiquity, its own Middle Ages, its own Renaissance and modern times. Moreover, all these eras in the West and in the East do not coincide either in time or in content with the main ideological processes. Thus, the Islamic-Iranian Renaissance, associated with the work of such encyclopedic scientists as Ibn Sina (Avicenna), Biruni, Farabi, poets Rudaki and Ferdowsi, began half a millennium earlier than the European Renaissance and was accompanied by the development of original political and legal theories. This asynchrony in the development of political doctrines and ideas is rightly pointed out in his studies by the well-known Russian specialist in the philosophy of the Arab East, Professor N. S. Kirabaev.

O. Spengler (1880-1936), author of the famous book "The Decline of Europe", believed that "the Western historian has a completely different The World History than the great Arab and Chinese historians" that the arrogant Western European "desires to comprehend only what approaches him, ascending through the Middle Ages from ancient world but what moves in its own way, he sees with half an eye.

The second approach - formational - was proposed by Marxism in the middle of the 19th century. Having put as a basis the class criterion determined by the nature of economic relations and the form of ownership, K. Marx considered history as a process of transition from one, lower socio-economic formation to another, higher one: from the primitive communal (pre-class) formation to the slave-owning one, from it to feudal, then - to the capitalist, or bourgeois, formation, and from the bourgeois - to the classless communist formation, the first phase of which is socialism. Marx believed that a radical change in the history of mankind would occur during the transition from the last antagonistic formation, the bourgeois, to the communist formation. Figuratively, he expressed this idea as a transition from the prehistory of mankind to its true history.

In this regard, we note that Marx clearly underestimated the revolution that took place in the XVII-XVIII centuries. in all areas of life in Europe and Europeans - from the economy to politics and ideology, which had a world-historical significance. Understanding the specifics of the East, he introduced the concept of "Asian mode of production" as the basis of a special Asian formation.

As for ideas and teachings - philosophical, political, economic, legal and others, then in the USSR, and then in others socialist countries in all textbooks teaching aids in social science, it was customary to distinguish between two main stages in their development - pre-Marxist and Marxist. Within the framework of the latter, Leninism was spoken of as Marxism in the era of imperialism and proletarian revolutions. It turned out that just as communism represented the highest stage in the development of human society, so Marxism (Marxism-Leninism) represented the highest stage in the development of social thought. And the whole history of the development of pre-Marxist thought was valuable only insofar as it led and led to the emergence of Marxism in the 1940s. 19th century

The third approach - technological - offers a more enlarged periodization of history, where the main criterion is the technological mode of production. In accordance with this approach, three epochs can be distinguished in history and, consequently, three societies - pre-industrial, industrial and post-industrial (technotronic, informational, etc.), the first stage of which began in developed countries in the last quarter of the 20th century.

The fourth approach is civilizational. He proceeds from the fact that the history of mankind is mainly the history of different civilizations, different cultures and religions, and also focuses on the fact that the ideas and values that are developed and accepted by representatives of one civilization are not necessarily suitable and accepted by representatives of another civilization.

Which of these approaches is more applicable to the history of political and legal doctrines? We believe that each approach has its pros and cons. On the other hand, to develop on their basis new approach, having collected in it the advantages of all approaches, getting rid of the disadvantages, is hardly possible. Therefore, as a rule, researchers of political and legal doctrines use the first approach.

Statehood and political and legal doctrines were first born in the era of the ancient world - in the societies of the East and antiquity (Ancient Greece and Rome).

In the East, the most notable contribution to political and legal thought was made by the thinkers of India and China. Here is a typical state form was "oriental despotism". Paternalistic ideas about power became widespread; in accordance with them, it was believed that the monarch in his actions was bound exclusively by custom and tradition. The goal of the state is the common good, and the ruler is responsible only to the gods. In general, the East is dominated by the idea of the wisdom of the old institutions and customs, the belief in their perfection: the established order is unshakable and can be violated only in case of non-observance of divine plans.

A special place in the development of political and legal thought is Ancient Greece. Here the form political organization served as a polis, or city-state. The forms of government were varied (aristocracy, democracy, oligarchy, tyranny) and were constantly changing. Features of political life contributed to the development of theoretical thought, prompted the search for an "ideal state system", the best form of government, which was impossible within the framework of ancient Eastern civilizations.

creative legacy ancient rome had, following the Greeks, a great influence on all subsequent political and legal thought. The attention of Roman thinkers was attracted by issues related to the forms of the state, mixed government; during this period, provisions were formulated on the state as a "case of the people" and the legal community, the fundamental provisions of jurisprudence as an independent scientific discipline.

The era of the Middle Ages in European countries played a special role Christian religion and churches. Initially, the Christian faith was in opposition to the Roman Empire. But over time, as the Christian faith became institutionalized, it adapted to the state, establishing itself as the official ideology and the basis of the worldview of feudalism. The most important problem political and legal thought in the Middle Ages was the ratio of spiritual and secular authorities.

In the countries of the East, a special place in this period is occupied by the political and legal ideology of Islam. Unlike Christianity, Islam proceeds from the indivisibility of the spiritual and secular power. At the same time, secular science also developed in Muslim universities, often ahead of the European one. Among Muslim scholars, a desire for a rationalistic interpretation of political problems arose relatively early.

The Renaissance is the time of the formation of the worldview of humanism, which puts the person at the forefront, the birth of individualism as an independent value of the human person. Humanism attached paramount importance to earthly life, political organization, approached the solution of these problems rationalistically, relying on facts and conclusions, which undermined the foundations of theology. Making sense political processes and appearances ceased to be the business of the church, the views of theologians became subjects of criticism.

The era of modern times was the era of bourgeois revolutions, prepared by the philosophy of the Enlightenment, characterized by the belief in the omnipotence of the human mind, in its ability to rebuild the system public relations. The thinkers of the Enlightenment made the church and the class inequality of the feudal system the main object of their criticism. Enlighteners believed that since "opinion rules the world", the spread of sound ideas is The best way transformation of society. Therefore, they pinned special hopes on "enlightened monarchs", supposedly capable of reinforcing the dictates of reason with the authority of the state. Along with the idea of "enlightened absolutism", the concepts of limited monarchy and popular sovereignty arose during this period, the theories of natural law and the social contract were improved.

Leitmotif of the 19th century became liberalism, which had two sides: economic (freedom entrepreneurial activity) and political (ensuring the rights and freedoms of citizens). Legal positivism took shape as the main direction of legal theory, considering law as a closed, self-contained system. Big influence the political and legal thought of the nineteenth century was influenced by the philosophy of positivism and sociology.

Criticism of the ruling bourgeois order led to the development of two trends in public life: conservative and socialist. If the conservatives opposed economic liberalism, then the thinkers of the socialist direction, in turn, developed projects of social transformation based on the principles social justice and designed to overcome the contradictions of the bourgeois system, class antagonisms.

In the middle of the century, the theory of scientific socialism was created, based on materialistic understanding stories. According to this theory, the development of the productive forces of society determines the transformation of the political superstructure, and the history of mankind is a consistent change in socio-economic formations.

Despite criticism from various positions, liberalism before late XIX in. remained the dominant direction of political and legal thought.

The past 20th century is usually considered in science as the latest time that went down in history as the era of imperialism, socialism and the crisis of the socialist system. The growing contradictions in society, along with the demands of the working class and the need to mitigate social tension, contributed to the recognition of the legitimacy of state intervention in socio-economic processes. Liberals resigned themselves to the inevitability of state regulation of the economy, while conservatives moved to a defensive position private property in all its manifestations.

At the beginning of the century, the socialist movement split into revolutionary and reformist currents. Appears world system socialism.

In the wake of the economic crisis of the 30s. and as a consequence of the revanchist sentiment that arose after the First World War, the fascist movement, whose ideologists preached extreme forms of nationalism and racism, is gaining momentum. In the field of legal theories, legal positivism is being replaced by sociological positivism. Law ceases to be associated only with the state, the focus of researchers is the law-making activity of the court, the norms created and recognized by collectives and associations.

As a result of the collapse of the fascist states and the collapse of the socialist camp that followed several decades later, neoliberalism and conservatism became the dominant trends in political thought at the end of the century, representatives of which adhere to rather moderate political views. The latter can be seen as an expression of centrist positions in contemporary social ideology. At the same time, left-wing trends and trends in political ideology (the concepts of the "new left", leftist extremism) are developing, as well as theories that have received the generalized name of right-wing radicalism (fascism and neo-fascism, "new right", racism).

Legal and political doctrines of our time are characterized by attention to the methodological basis of research and specialization of research objects. Thus, after the Second World War, political science separated from legal science and acquired the status of an independent branch of knowledge. Accordingly, the structure of both political and legal science has changed: within the framework of political theory In particular, a number of particular concepts have taken shape, dedicated to one or more problems: the concepts of totalitarianism, pluralistic democracy, and ruling elites.

SUMMARY OF THE COURSE "HISTORY OF POLITICAL AND LEGAL DOCTRINES"

lectures + textbooks

1. Subject and method of IPPU

For a lawyer, knowledge of IPPU is mandatory. The history of political doctrines - the history of the philosophy of law - the history of the teachings of the OGiP - IPPU.

Mikhailovsky made a significant contribution (Professor of TSU) “PSF of law is the crowning achievement of legal training”.

FSF law is studied in retrospect - how relations have developed in the field of humanity and law, according to what laws political changes are taking place, etc. History has its own internal logic, its laws must be reckoned with. IPPU forms theoretical thinking and historical consciousness in the political and legal reality.

The two main areas in history are:

1) theoretical

2)practical

In the IPPU, as in a mirror, the FSF reflects the train of thought, the practice of developing state institutions. This makes it possible to explore ideas. IPPU is a part of the history of the FSF that interprets not the general part of being and consciousness, but issues of state, law, and politics.

The subject of the IPPU is the teachings, views on the state, law and politics that are theoretically formulated into a doctrine.

According to the methodological structure, the doctrine includes 3 components:

Methodological basis (e.g. FSF of religion, other), i.e. worldview.

The methodological basis is connected with the influence of the worldviews of the era, the dominant or oppositional views on the PP ideas. The ancient East is a religion, Ancient Greece is a reliance on FSF, New time is deeply rational.

The substantive basis is an extensive and complete system of views on the state, politics, law, which are of key importance. Fragmentary, undeveloped concepts and views are not included. This is the link between the program provision and the methodological basis. But this connection is multivariate. Over time, traditional defined problems took shape, to the development of which many scientists contributed.

what is a state, how is it created: by the will of people or by higher powers

serves the common good or particular social groups

the competence of rulers or the hereditary right of the monarch

what is law: the greatness of reason, divine scripture or the prescription of rulers

the subject of the state, the rights and obligations of citizens - whether it is necessary to obey the laws and the authorities behind them

what is justice and what is fair (equality-inequality)

how to relate politics and morality: should political figure be guided by the absolute requirements of morality, or in the name of the common good, you can retreat

correlation of morality and law (morality of law and legal law)

what place does a person take in a society with social contradictions, where are the guarantees of her freedom, individuality and material security

In Dr. Greece, the main attention was paid to the structure of the state and the laws of the structure of statehood, increased attention to the forms of government, the desire to find the best.

In the Middle Ages, the question of the relationship between the state and the church was secular and spiritual power. In the 17th-18th centuries: the problem of legal inequality, freedom and individual rights.

In the 19th-20th centuries: the problem of material and social guarantees of individual rights, the question of the forms of the political regime, the development of the theory of the rule of law, the connection of the state with political parties.

The historical school of law could not have arisen in the 18th century; public consciousness was not set up historically (history as an obstacle to change). The school of natural law dominated. In the 19th century conditions changed.

The program part of the political and legal doctrine includes the interests and ideals of various classes and estates, their relationship to the state and law. There is not a single theory in the IPPU that has been adequately translated into real life.

The fate of the doctrines that generalized the state-legal practice was better. For example, the theory of the separation of powers by Locke and Montesquieu generalized the experience of the state-legal history of the English Revolution and was of a commentary nature, i.e. connection with practice.

The ancient theories were more distant from reality. For example, Rousseau's theory of popular sovereignty as a guiding program for the Jacobins (they created their party representative institutions). Plato's Travels to Syracuse, his treatise on the state. Owen's ideas.

Factors influencing the development of political and legal doctrine and political thought:

Distribution property

The nature of political institutions

Life and traditions of the people
The desire of theorists to defend the interests of their social group, his class and refute the interests of other groups - sometimes consciously, sometimes not, but it is impossible to avoid
The imprint of the personality of the thinker who developed the theory (level of education, religious feelings, living conditions, etc.)
The relative independence of political doctrines and often their weak connection with life - T. More and his "Utopia"

Methodological installations of IPPU:

1. General scientific research methods:

formal-logical

dialectical

systemic

comparative historical

2. Philosophical methods (?):

theoretical

metaphysical

In Soviet times, the Marxist method of material dialectics was also used. Russian philosophy was not characterized by materialism!

A critical attitude to sources and scientific objectivism is required.

2. The main directions of political and legal thought of Ancient India (not a lecture).

The formation of the political and legal thought of Ancient India is carried out under the influence of mythological and religious ideas. This is connected with the dominant position that the priests (Brahmins) occupied in the spiritual and socio-political life of ancient Indian society. The beginnings of the ideology of Brahmanism are already found in a number of ancient Indian monuments of the 2nd millennium BC. e., called VEDAS (knowledge). They talk about the division of society into 4 varnas (estates), which were created by God from Purusha (world body). Members of all varnas were free. The varnas themselves and their members were unequal: the first two (priests [brahmins] and warriors [kshatriyas]) were dominant, and the remaining two (merchants and artisans [vaishyas] and shurdas standing at the very bottom) were subordinates.

Brahmanism received its further development in ancient monuments in the Upanishads. All estates and their members had to follow the divine arrangement for them - dharma.

Priests dominated, predetermining the interpretation of laws for various estates and their members. The ideology of Brahminism pervades the Dharmasutras and Dharmashastras - legal collections. By the 2nd century BC, the Laws of Manu appear. In the Laws of Manu, the provisions of the Vedas and Upanishads about the division of society into varnas and inequality are reproduced and consolidated. According to them, the king should honor the priests, following their instructions. The main purpose of the king is to be the guardian of the varna system and all who follow their inherent dharma.

A significant role in the Laws of Manu is assigned to the issue of punishments (the whole world is subject to punishment). The inequality of rights and duties of the various varnas includes their inequality before the law in matters of crime and punishment. Priest privileges. Based on the concept of the transmigration of souls, earthly punishments and afterlife punishments are used.

This position was criticized by Siddhartha, nicknamed the Buddha (enlightened). He rejected the idea of God as the supreme personality and ruler of the world, human affairs depend on their own efforts. A priest for Buddhists is not a member of a privileged varna, but every person who has achieved this through perfection with his own efforts. The law in the understanding of Buddhists is the management of the natural world, regularity. Reasonable behavior requires the knowledge and application of this law. Treason is also suitable for punishment. It is unacceptable to apply punishment in the absence of guilt. Buddhist ideas began to influence government policy and legislation. During the reign of Ashoka, Buddhism was recognized as the state religion.

3. Political and legal thought of Ancient China (not a lecture)

Lao Tzu is considered the founder of Taoism (the most influential teaching of the social and political thought of Ancient China). His views are reflected in the book "The Book of Tao and Te". Tao traditions are a manifestation of heavenly power. In contrast to them, Lao Tzu characterizes Tao as independence from the master's heaven, the natural course of things, natural regularity. The Tao defines the law of heaven as the law of the nature of society. It represents the highest virtue and justice. Significant role in Taoism given to the principle of non-action, refraining from active actions (non-action in this doctrine acts as a call to the rich to refrain from oppressing the people). Everything unnatural (culture, legislation) according to Taoism deviates from the Tao and is a false path. The influence of natural factors on social and political life according to this concept is carried out by following the Tao, which means the rejection of culture and a simple return to the natural way of life, rather than further improvement of society, the state, the law based on and taking into account the requirements of Tao. Lao Tzu criticizes wars and violence. However, while praising non-action, the Lao called for passivity, i.e. to patriarchal simplicity, to life in small settlements, to the rejection of writing.

A fundamental role in the political thought of China was played by the teachings of Confucius in his book Conversations and Sayings. For many centuries, it has influenced the worldview of the Chinese. Confucius developed the patriarchal-paternalistic concept of the state. The state was interpreted by him as big family, the power of the emperor was likened to the power of the father, and the relationship of the ruling and subjects as younger, dependent on the elders. Confucius advocated aristocratic concepts of government, the common people were completely removed from government (dark people, commoners, low, younger children). Subordinate to noble men, the best, the highest, the eldest. His political ideal was the rule of aristocratic virtue and knowledge. Being parties to non-violent methods of government, he called on rulers and subjects to build their relationship on the basis of virtue. This call was addressed primarily to the ruling, since their observance of the requirements of good played important role in relations with subjects. The call to subjects was obedience and respect for elders. The political ethics of Confucius is aimed at achieving peace between the top and the bottom, the stability of government. He also rejected external wars and aggressive campaigns. In general, virtue was interpreted as a set of ethical and legal norms and principles, which included the rules of ritual, care for people, devotion, etc.

He gave the legislator a supporting role. The socio-political burden is borne by the principle of changing the name, i.e., bringing the name in line with reality, denoting place, rank, etc. Kanfutsianism was recognized as an influential current of political thought and began to play the role of the state religion.

Mo Tzu founded the Moist school. He expressed the interests of small proprietors, artisans whose position was unstable. Mohists condemned the filling of public offices on the basis of descent and kinship, since. believed that people were equal. The wiser should be promoted to public service, regardless of origin. The source of wisdom is not knowledge from books, but life experience. Therefore, government management does not require training. In contrast to the Confucian principles of philanthropy, they put forward the principle of universal love. believe that true philanthropy should be the same for everyone, regardless of class. Universal love is interpreted as mutual benefit. From an unselfish virtue, universal love is transformed into a calculated service to gain benefits. The ideal organization of power is considered to be a state with a wise ruler and a well-functioning executive service. In order to establish complete unity, the state is invited to instill unanimity, eradicate harmful teachings, and encourage denunciations. Support given order necessary through punishments and rewards. Thus the ideas of equality were discarded. The learned mo-tzu occupies an intermediate position between Confucius and the legalists. The interests of the propertied and serving nobility are defended by legalists.

Representatives of Shang Yang initiated the reform of the legalization of private property. The Legists developed a doctrine of the technique of exercising power, directing the aspirations of the serving nobility. Other features constituted elements historically suited to social phenomena. The ideology of legalism outlined the implementation of public comprehensive economic and political reforms. It was proposed to concentrate all power in the hands of the government, to deprive the governors of power. It was planned to abolish the transfer of office by inheritance. Those who proved themselves loyal to the state were nominated for administrative posts. The sale of positions was envisaged. The Legists considered it necessary to subordinate the family clans to the local administration. They proposed to establish uniform laws for the entire state. Relations between the government and the people were seen as a confrontation between hostile parties. The highest activity of the sovereign is the creation of powerful power. Legalism contained a more complete program for a centralized state. The application of legist doctrines led to the strengthening of despotism. Confucianism was supplemented with new ideas and established itself as the state religion. Mohists are gradually dying off. Confucianism remained the official political doctrine until 1913.

Potitko-legal ideology ancient india(Brahmanism, Buddhism)

4 castes ("varnas"):

Brahmins- from the mouth of the world god (education ...),

kshatriyas- out of hand (government, war),

vaishyas- from the thighs (ensuring the activities of brahmins and kshatriyas, craft ...),

sudras- from the feet (service, dirty work).

Slaves- not people, but tools.

If a person does not fulfill his duties ("dharma") according to this hierarchy, then punishment follows ("danda" - a stick).

If it does, then - ?????

Putil: "Of the four types of legalization of dharma - custom, scripture, court decision, royal decree - the highest is, in the event of a conflict of their norms, the royal decree.

In Brahmanism, scripture clearly has priority, i.e. the above statement is clearly a departure from Brahmanism.

The logic of the priority of scripture followed clearly from the hierarchy (see above).

"Buddha" - enlightened.

The main goal is to achieve the state of "nirvana" - the highest state of the spirit - achieved through the restriction / rejection of desires (it is the non-fulfillment of which causes the main suffering).

"I do not call a man a brahmin only for his birth or for his mother" - the idea of spiritual equality, everyone creates their own destiny.

"Violence does not destroy violence, but the absence of violence destroys it"(or "hate" instead of "violence").

Those. idea: the increase in violence causes its counter-growth.

Political and legal teachings of China (Confucius, Shang-Yang)

All teachings differ for two fundamental reasons: whether a person is good by nature (“a beast or not”) and from where it is better to draw ideas: from the past or from the future.

Confucius:
1) patriarchal theory of the origin of the state and the idea of paternalism:

the state is an extended family,

monarch - father big family with related responsibilities and functions;

paternalism - the power of the father and his concern for the family,

2) idea of meritocracy- power worthy

the power of not the best, but worthy in the sense of morality and morality - while it is impossible to refer to the fact that “they steal more from above”,

3) idea of humanity

the care of the elders for the younger and the respect of the younger for the elders,

"a person needs to be fed, educated, and then instilled high morality" - the idea that without food and education it is useless to instill morality,

4) negative attitude towards laws:

the law is always a punishment that causes a defensive reaction - lies and a complete lack of conscience, violence against the inner world of a person who is forced to crush himself simply for the sake of survival,

5) officials advice:

the ancients considered it a shame for themselves not to keep up with their own words,

in a country where there is tranquility - be bold in actions and speeches, and in a country where there is no tranquility - be bold in actions, but careful in speeches,

etc. (lots of advice)

Shan-Yang (338-390 BC)

led the course of legalists ("legos" - the law, "legists" - legalists).

Opposite of Confucius:

1) the state is an apparatus suppression own people, and the monarch is a despot ruling with severe laws. If the people are strong, the state is weak, and if the state is weak, then this is the cause of all troubles,

2) kindness and humanity are the mother of all misdeeds,

those. in the state there should be many punishments and few rewards (ratio 9:1). For the slightest misconduct, one should be severely punished, up to the death penalty - then there will be no big crimes (“for dropped coal from a pot - death, then there will be no arson”),

3) the need to stupefy your people to make it easier to manage

in the Qin empire, where this found application, all philosophical books and the philosophers themselves were destroyed, for the storage of books - a severe punishment,

4) introduced mutual responsibility and severe punishment for "non-information",

5) allowed to buy bureaucratic positions.

Earlier in China, the official was "king and god", there was no clergy at all, because. the functions of the clergy belong to officials; Only a person from noble families could become an official.

Shan-Yang changed this system: thanks to the purchase of positions, energetic and intelligent people came to power.

The Qin Empire, built on the advice of Shan-Yang, is purely totalitarian.

Complete cessation of civil strife, "ominous calm."

Greece. Political and legal ideas of the sophists.

Sophos - wisdom, sophists - paid teachers of wisdom.

Senior Sophists– development of problems of the state, management.

Junior Sophists- emphasis on the technology of conducting disputes through absurd logic, which is difficult to "detect" ("what you did not lose - you should have").

Their advice to lawyers: unbalance the opponent (so that it is difficult to follow the logic), speak either very quickly (so that those who listen to the logic do not have time and consider themselves stupid), or vice versa - slowly. Those. - psychological approach to the practice of law. Polysemantic words, play on words, ...

Senior Sophist Protagoras:

1) the golden age of mankind is in the future: people used to be like animals, distinguished from animals by fire. And only when the gods gave people shame, truth / law - people began to live differently from animals.

2) fairness is a relative concept(what is true today or for one is not true tomorrow or for another),

3) the measure of all things is man(the idea of “what exists for what”: a person for the state or a state for the person: everything should be for the sake of the person).

Athens: Socrates

By court decision, he was sentenced to death, out of respect - in the mildest way - by poison.

1) those who know should manage

2) law and justice are identical concepts.

It was for these ideas that Socrates was found guilty and was executed for undermining the constitutional order and for corrupting the youth.

The reason for this decision of the court:

1) holding positions in Athens - by lot (including artisans ...), lot is the main constitutional principle of Athens,

2) the draw was considered "the will of the gods", i.e. if against drawing lots, then an atheist, and atheism is a seduction of youth.

Plato (student of Socrates).

about forms of government: hierarchy in descending order:

1) aristocracy(the power of the best, at first philosophers were meant by the best, but power corrupts even philosophers - an oligarchy appeared),

3) democracy(the power of the people, untrained, illiterate people who confuse many concepts: "freedom - permissiveness", "rudeness - valor"; democracy develops into ochlocracy),

4) ochlocracy- the power of the crowd (but the crowd always needs a leader, and he easily appears in it - timocracy appears),

5) timocracy- the power of heroes, the power of honor (dangerous because these heroes and the military cannot imagine their existence without war, brutal centralization, etc. - growing into tyranny),

6) tyranny- the cruel power of one (the best oppose tyranny - again a return to the aristocracy).

Ideal state(eternal and optimal aristocracy) according to Plato corresponds to the essence of man:

- reasonableness- desire to think

- ambition- pursuit of fame

- lust- the need for physiological comfort.

Then in an ideal state there are the corresponding three estates: philosophers, warriors and artisans / farmers (depending on the essence of a particular person).

Principles of life of philosophers and guardians:

1) the community of property and the prohibition to touch money,

2) the community of wives (the family automatically reproduces inequality, because everyone takes care of their own child, and the idea - all children - of each member of society),

3) public education of children.

Aristotle.

Pupil of Plato, educator of Alexander the Great. He disagreed with Plato on the issue of the optimal type of property: everyone cares about personal property much more than about public property.

Forms of government according to Aristotle:

Churchill: "Democracy is the most bad form board, but they haven’t come up with a better one yet.”

Democracy:

1) too equalizes the poor and the rich in terms of participation in governance through equal suffrage - regardless of their contribution to society.

2) people who do not have property and therefore act irresponsibly can come to power.

Politia- the power of educated people with property - a symbiosis of oligarchy and democracy: there will always be rich and poor, but most of society has property and, at the same time, is literate.

Two types of justice:

Equalizing justice operates in relations between citizens,

Distributive justice operates in the relationship between the citizen and the state (the state cannot “love” everyone equally).

Political and legal doctrines early christianity: Aurelius Augustine (Blessed)

The basic principles of organizing the life of communities:

1) community of property,

2) the obligation of labor for all,

3) equality,

4) lack of clergy and cults,

5) condemnation of wealth.

The "golden rule of normative regulation" is formulated:

"Treat others the way you would like to be treated."

Two aspects:

1) with what measure you measure, it will be measured to you,

2) With what judgment you judge, you will be judged.

Main works: "On the City of God", "On Free Will".

1) a person who lives according to his own will is likened to the devil (inequality, injustice),

2) man lives according to the divine will.

State and city are synonyms.

Idea 1: those who live according to option "1" will die sooner or later, because live in sin.

Idea 2: Violent struggle against heretics is justified (the shepherd must drive the lost sheep).

Idea 3: the concept of "how to be saved from sin."

The difference between a misdemeanor and a crime:

“If passion destroys the soul and body, then this is a misdemeanor,

if it acts to the detriment of another, it is a crime.”

Thomas Aquinas (Aquinas). About the state and the law.

The main work is "The Sum of Theology".

Recognized as the official theologian of the Catholic Church.

In the Bible, all power comes from God.

Identification of three elements of state power:

1) Essence (where power comes from) - power from God.

2) The origin of power: by inheritance or by force.

3) Use of power:

a. if the monarch cares about his subjects and the privileges of the church, then this authority must be obeyed,

b. if the monarch does not care about the subjects and the church, then the people have the right to revolt.

"Perhaps the tyrant was sent to the people for their sins."

Subordination of laws:

2) natural law(“natural” - “human”, human awareness of eternal laws; laws of conservation and laws of reproduction operate in nature; human natural laws: the desire for self-preservation, reproduction, knowledge of the truth).

3) human law(feudal law): human laws should not contradict natural laws, but differ from them:

a. written down (whereas natural laws are not written down),

b. provide for penalties for violations.

4) divine law- Bible.

Called for force (with the help of the state) to fight heretics: heretics undermine the foundations of life.

Medieval heresy about law and state.

Heresy- an opposition movement within the dominant church.

Two types of heresy:

1) plebeian(peasant-plebeian) heresy:

a. demands social and property equality,

b. demands the liquidation of the church organization and the clergy.

Representatives of the plebeian heresy - "Bogomils" ???.

The landowners are servants of the devil.

2) burgher heresy:

a. requires legal equality (burghers have limited rights, unlike feudal lords),

b. requires a cheap church (burghers create wealth with their labor and give 1/10 of it to the church).

Political and legal doctrine of Niccola Machiavelli.

The main work is "The Sovereign".

Key Ideas:

1) singled out politics as a special area human life , which has its own laws (the main thing in politics is a person, in history the interests of people are unchanged),

2) separated politics from religion and morality(against the Catholic religion, because it calls for humility, but we need a religion that calls for the struggle for justice; “The end justifies the means, if the end is the well-being and tranquility of the state”; morality is above politics).

3) advice to the sovereign:

a. the sovereign must achieve the love of people, but one must rely on fear - all punishments must be carried out at once,

b. the sovereign must be stingy (if he is generous, he cannot give to everyone equally),

c. do things that are pleasing to subjects - to do it yourself, and objects that are objectionable to subjects - to entrust subjects,

d. the sovereign should never encroach on the property of his subjects, "it is better to kill than to threaten."

Political and legal ideas of utopian socialism (Thomas More and Tomaso Campanella).

Main works: Thomas More - "Utopia", Tomaso Campanella - "City of the Sun" (written in prison). Both works are written in the travel genre.

Genre - utopian socialism.

Utopia- unrealizable (or where am I????), a blessed country. Characteristic- don't think about material well-being, only about spiritual development. Material development harms the spiritual.

Criticism of the existing system. T. Mor: "sheep devour people."

The state is responsible for its citizens.

The state is a tool for oppressing the poor.

Convoluted laws are beneficial to the rich (the poor cannot get an education).

Key Ideas:

1) public property,

2) obligatory work for everyone (they work in the "Utopia" 6 hours, in the "City of the Sun" - 4 hours),

3) everyone should benefit society,

4) a public meal,

5) there are few laws, because no private property; the main part of the laws is the regulation of family and marriage relations,

6) against punishment: if a person has harmed society - to hard labor.

Two types of execution of the death penalty (T. Campanella): everyone hits him, persuades him to be surrounded by gunpowder.

The theory of natural law and contract (T. Hobbes, J. Locke)

The rights that people had before the emergence of the state, after the emergence of the state, it gives positive rights.

T. Hobbes: "Leviathan"(understood the state as a monster).

1) a person is an egoist and craves power, “man is a wolf to man”, there is a war of all against all; the source of the origin of the state is reason; political power is absolute, but does not affect civil affairs,

2) there should be as few laws as possible.

J. Locke: "Laws are like hedges along the road, and an extra law is harmful and unnecessary."

To protect their property - to agree on the creation of the state. The state is the guardian.

Ideas of liberalism.

Three branches of government: executive, legislative, union (foreign relations).

Developed the theory of labor property. Labor is the determinant of property.

Differences in approaches:

Hobbes - an agreement against all risks (with the exception of civil),

Locke is a contract against certain, agreed risks.

classical theory of democracy.

Montesquieu: On the Spirit of the Laws.

There is the letter of the laws and the spirit of the laws.

The spirit of laws is influenced by:

Physical factor (climate, territory, etc.),

Moral factor (customs, religion, political regime).

Developed the theory of checks and balances: no branch of government has the right to replace a law proposed by another branch of government.

Started to develop the concept civil rights person:

1) pointed out the danger to human freedom on the part of criminal law,

2) the inadmissibility of insulting human nature during punishment,

3) inadmissibility of punishment for thoughts,

4) about immodest words.

B. Spinoza: "Theological and political treatise."

2) laws must be adopted by a large number of people (people are selfish, and the monarch too),

3) one must not interfere in a sphere that cannot be changed in any way either by the promises of rewards or the fear of punishment.