Theory of the origin of law.
There is a variety of theories of the origin of law:
1. Legal positivism and normative approach to understanding the law. One of the founders of the theory is G. Kelzen. Representatives of this direction saw the right of the product of the state will, contained in legal acts issued by the state.
This approach allows citizens and implementing legal requirements to view the content on the text of the latest regulations and elect the best option would be. In this theory, the right to have a hierarchy of norms in the form of a pyramid, stairs, on top of which are the constitutional norms, followed by the rules of law, the norms of action by the government, the rules regulations of ministries and departments. G. Kelzen recognized the right of public as expressed in the mandatory legal act which is collateralized by coercive power of the state. The dignity of the normative approach is that it most clearly in contrast to other theories of the origin of law, determines the quality of focused right-normativity that is organically linked with the formal definition of law. The disadvantage of this approach is that it ignores the content side right, the personal rights of the individual.2. Sociological legal theory emerged in the late XIX century. The most striking of its representatives L. Dyugi, P. Erlih viewed right as the current practice of implementation of existing laws. It is quite attractive for legislators and for the researcher. For a detailed study of the law is necessary to know the current legislation, to identify and fill gaps in the law.
3. Psychological legal theory developed for a long time in the sociological theory of law. It originated in the late XIX-early XX century. The most famous of its founders are L.I. Petrazhitsky, M.A. Reys- ner. They believed that the right is a product of mental experiences of people. However, they have eschewed the distinction between law and justice, and have fiercely rejected the normative theory of law.
4. Theory of natural law is one of the most common theories of the origin of law. Its representatives, Socrates, Plato, and Aristotle did not share the views of the Sophists, who argued that the basis of the right of education is nothing immutable. This theory is largely in line with the contractual theory of the origin of the state. The representatives of this theory are distinguished:
a) the natural law as a product of human and social nature. They argued that the rights and obligations arise on the basis of objective needs of society. Some of their rights people succumb to the state, concluding an agreement on its establishment;
b) positive law, in their opinion, comes from the state and must fully comply with the natural law to ensure fairness. The advantages of this theory can be noted as a measure of understanding of the right of freedom and social justice. The disadvantages may be referred to the interpretation of law as a dogma, eternal, immutable.
5. Theological theory of the origin of law based on the sacred sources, above all, in the Bible. Its founders, Thomas Aquinas, Aristotle argued that the rights of the people are of divine origin. However, P. Golbach in his book «The Sacred contagion or natural history of superstition», based on the power of the monarch and related legal norms and beliefs, strongly rejected that theory. In many states, the idea of the divine origin of the law has led to the fact that «the emperor has become the only source of grace». All of this eventually led to arbitrariness, excesses.
6. Founders of Marxist theory of the origin of law Marx, Engels, Lenin considered purely from the right class positions as made into a law will of the ruling class.
7. Historical Law School was based on the premise that the right is due to the development of the national spirit. Its ideological G. Puhta, F. Savini and others argued that the duty of the legislator is to find so- called «final» rights.
Questions for the self-control:
1. What means the «mononorms»?
2. What functions has fulfilled the law in the ancient time?
3. What is the difference between the law and moral norms?
4. Which theories of the creation of law do you know?
5. What means the «broad» understanding of law?
Taskfor srs:
Please, make the conspectus of the research work of J.-J. Russo «The discussion of the creation and basis of inequality between the people».