Since antiquity, law has been an essential element of social and state structure. The deepest mark was left by Roman law, which is considered the foundation of European legal tradition and culture. Basic concepts of law, ideas about the nature of basic legal definitions originate in Roman law, in its systematizations and codifications. Law was the main pillar of Rome at all stages of its development - the tsarist, republican, period of the empire. It served as an exceptional tool that allowed achieving the necessary balance within society, eliminating destructive internal contradictions and rallying it to combat external threats.
Influence on the law of philosophical traditions and historical conditions
Speaking about existing concepts of law in a broad sense, as typologies of legal systems, schools, views, they are based on some basis for such a distinction. Depending on the criteria used over the course of two millennia, a large number of concepts and worldview systems have been created, both purely theoretical and filled with practical content. Without listing all of them, we can only note that in many respects the development of the concepts of law is connected with the development of philosophical concepts - the strengthening, as the dominant, of various philosophical systems in a certain historical period. The development of law is also associated with the strengthening of the role of individual states, which has always led to the spread of cultural values ​​and legal ideas among neighboring peoples, as well as their exchange between states united by one historical tradition.
Law and justice
On the whole, in any legal system, the core connection between the law and that internal natural sensation of any person, which is called justice, is recognized. “Pure” justice in the abstract sense is a kind of substance that fills the law in its natural expression. Designed in different ways, it is what constitutes the essence of law, with any perception and definition. Unjust law and law ultimately result in their rejection by society, which leads to their change in varying degrees and degree of intensity.
Moral and religious concepts
The first concepts of medieval European law, based on the reception of Roman law, bore a significant moral and religious connotation. The leading role of religious Christian teaching in all of medieval philosophy has determined the close connection of the legal teachings of this period with the dogmas and norms of Christian morality. At the center of such a concept were rules and laws prescribing proper conduct from a Christian perspective. Only in the XVII century, religious dogmas in Europe began to separate from secular law, as a result of which law and law gradually lost their sacred and religious connotation, without losing, however, the main connection with morality. Of particular importance were and are religious norms and law in Islam. The text of the Koran is now the main source of Islamic law of the Arab states.
Natural Law Concept
The origins of the natural legal concept are in the teachings of Aristotle. Subsequently, in the combination of Aristotelian ethical philosophy and Christian religious doctrine, natural law found its basic outlines in the writings of Thomas Aquinas, with whose name the emergence of the school of natural law in European philosophical and legal history is associated. The natural-legal concept was widespread in modern times, was developed in the works of philosophers and theorists of European revolutions of the 17-19 centuries - J.-J. Russo, S. Montesquieu, T. Jefferson, I. Kant, A.N. Radishchev and others, and remains relevant today. Natural law as a concept of international law was used by a Dutch lawyer of the 16-17th centuries. Hugo Grotius. The most important element of the natural-legal concept is the approval of the idea of ​​natural, inalienable human rights that are not “gifted” to him by someone, for example, the state, but belong to man by nature, along with any other human values ​​and qualities. The basis of the concept of human rights is the recognition of the fact that the state serves the law, is its pillar, and the value of human rights is a priority in any field of activity.
English law and the “law of justice”
The concept of natural law has found its place in both general (English) systems and continental law systems. English law, before others, was faced with the urgent need to limit the power of the monarch — the history of the development of the English state was accompanied by a fierce struggle for rights, at first the aristocratic elite and monarchs, then the common people, which was expressed in the 1640 revolution, one of the first bourgeois revolutions in Europe . Of particular importance in the English system was the court as an entity that creates, defines and interprets the content of law. The precedent created by the court, against the backdrop of the weakness of the personal power of the monarch, in the English system was the primary element in any legal sphere, the interpretation of judges is the main form of existence and consolidation of legal norms. A special place in the English system of precedents is “the right of justice”, a unique institution that arose and established separately from “common law” as the realization of a personal ideal representation and understanding by judges of natural norms and justice as such. “Better than ten guilty people will escape punishment than one innocent will be punished,” reads William Blackstone’s 18th-century judge’s statement and 18th-century politician, known in the English legal tradition.
Medieval Germany Law
Another center for the formation of legal ideas and concepts for many centuries was Germany. Having survived the long process of creating a unified statehood, German legal consciousness created a number of traditions, one of the most important of which was the concept of civil law in its modern sense. Of crucial importance for the formation of German state formations and principalities of the Middle Ages was Roman law. It had its special authority because medieval Germany adopted many cultural and civilizational features from the Roman Empire - for a long time even the name of the state among the Germans was “Holy Roman Empire”. The digests of Justinian, the codification of Roman law, were directly relevant as current laws. The continental tradition of exposing legal norms in the form of laws and the secondary, “subordinate” role of judges are largely connected with this. One of the first legal monuments of the German principalities in its own right was the Saxon Mirror, written in the 13th century. Its important feature is the form - the author, knight and judge Eike von Repkov set forth in it not so much the norms of the law that existed at that time, but, first of all, his ideas, which to some extent became the rudiment of more complex legal institutions and branches of legislation of subsequent eras.
The formation of the positivist concept of law
The beginning of the ideas of legal positivism is usually associated with the strengthening of state power and the absolutism of monarchies in some European countries of the 16-17th centuries. By linking law and the state together, supporters of the concept created the ground for the possibility of separation of law and morality. Law has become an inalienable attribute and instrument of state power - law, in this approach, it is customary to consider exclusively norms clothed in the form of law, adopted or published by an entity that holds state power. In the “raw” positivism there were extreme directions substantiating the monarch’s full right not to be limited by any norms, and even ascribing to him a “divine” origin, and therefore complete freedom of action (J. Boden, N. Machiavelli). However, there was also a logical justification for striving to remove the right “out of the box” of Christian dogmas and moral pressure (T. Hobbes, G. Hegel). In their development, the positivist conceptions of state and law went a long way towards becoming and finding their place in the public mind both in the system of English “common” law and in the continental, and in the 19-20 century they got a modern look in the works of philosophers and lawyers Bentham, J. Austin, G. Hart. The result of the struggle between the ideas of legal positivism and natural law was, in particular, the emergence in Germany of the historical concept of law.
Historical School of German Law and Pandectic
According to the ideas of the historical concept of law, the founders and main theorists of which were German lawyers of the 19th century G. Hugo and F.K. Savigny, law is the product of the gradual development of historical reality, everyday life, inextricably linked with man and society. Like other components of being — language, religion, morality, custom, economy, art, science, external organization, law unites individuals, in its structure, is the initial attribute of a person, and in its development, is a product of history. A special role in its formation is played by the “People’s Spirit” - he is a real creator, a source of law. Outside of the historical school, another common area of ​​19th-century German legal thought was pandecticism, a tradition of continuing the centuries-old connection with Roman law - the digest (pandects) of Justinian, as well as their many interpretations. The result of some competition and the unification of the ideas of historical conception and pandectics was the adoption of the German Civil Code of 1896, which became the classic, model civil code for continental legal systems, including Soviet and Russian.
Legal realism
At the beginning of the 20th century, legal realism was formed as a separate concept. “The life of the law is not logic, but experience” - in such words from the book of an American lawyer and judge O.U. Holmes is characterized by his approaches. In every possible way removing from the law any manifestations of “romanticism,” realism has become the leading doctrine and philosophy of the United States in the first half of the 20th century, and has had a significant impact to this day. The right in this approach is the result of real life - “living law”, in contrast to “book”, “dead”, is real - the task of the legislator is to correctly perceive it and put it into law. Realism is opposed to the natural approach, as it denies, as such, the connection with moral values, and positive law, as artificially invented by theorists.
Other concepts
Among other modern concepts of law, the psychological concept of the Polish lawyer L. I. Petrazhitsky, as well as the libertarian theory of law of the Russian scientist V. S. Nersesyants are of interest. In his theory, L. I. Petrazhitsky shared “official” law and “intuitive”, determined by the psychological attitude of a person. In a sense, intuitive law is more universal and adaptive, while official law often lags behind changes in society. Libertarian theory of law V.S. Nersesyantsa puts freedom at the forefront, evaluating it, moreover, not as “arbitrariness” and “self-will”, but through law, which has the meaning of an “measure of freedom” of the individual.
What is right?
Of course, there is a rational grain in every concept. The final answer to the question: "What is the right?" - is beyond the reach of logical inference, as is the answer to the philosophical question “what is truth”. Nevertheless, one can confidently assert that those concepts of rights and freedoms that are based on the acceptance of justice that protects the right from abuse and freedom from arbitrariness are closer to the truth.