The emergence of law is one of the most difficult issues in legal theory. He was the subject of debate, both a few hundred years ago, and today. In any case, each of the opinions has a right to exist. You can find out the most popular reasons for the emergence of law by reading the article.
Primeval system
One of the most popular points of view is that the emergence of law occurred in the ancient era of the primitive communal system. It is believed that in those days primitive norms arose.
Professor Malinowski and Szabo consider that elders or leaders were in the role of legislators in this period. Later, the foundation of the rights was entrusted to the church, which was engaged in the regulation of legislation.
The scientific basis of the primitive system
The emergence of law is inextricably linked with myths, rituals, rituals - it is here that a smooth transition is observed from mononorms, which are presented in the simplest sense, to the norms of economics, morality and law.
Already in the period of the primitive communal system the Neolithic revolution was brewing as a cut-off line. Thanks to this concept, the principle of historicism began to take shape. The postulate is the basis of knowledge of the human world in many sciences, for example, in philosophy, management, sociology, and so on. This principle is used, inter alia, to study law, highlight aspects of its origin, identify new theories, and so on.
The grounds for the emergence of rights are hidden in the formation of various associations, namely clans, communities. In connection with these, a completely logical question arises: has law always existed? Does the presence of society affect its development, if we compare this trend with state development? The answer lies in the many theories that hold even now.
Theological theory
The emergence of law explains theological theory. Her followers are Thomas Aquinas and Aurelius Augustine. This theory is the most ancient, and also serves as the basis and development for other justifications of the origin of the norms.
The theological theory is based on the divine law that was created by the Creator. The followers of this theory believe that the rules of law were presented to mankind by the Lord, as one of the phenomena of the world. As an argument, the authors use the provisions of the Bible, which are laws for the whole people. In addition, it is believed that the emergence of law is due to those commandments that God gave to Moses.
Followers claim that the basis of law is the divine message and the divine mind that rules the world. In second place in theological theory is a natural law, that is, a system of social relations that have developed as a result of interaction between people.
Of course, this theory is not subject to scientific evaluation, as it relies solely on the facts of religion and faith. Reliable evidence of the above theory, the authors could not give. As practice shows, adherents of this opinion are Muslim jurists and scholars of Western Catholic universities.
Historical school
Theories of the emergence of law are represented by a huge variety, among which the historical concept of the origin of legal norms occupies a special place. The followers of thought are Savigny and Hugo. The historical school is a kind of antipode of natural-law theory. The concept arose at the beginning of the 19th century.
Its essence lies in the fact that the law is not imposed by something, nor is it created by the legislator, but is formed on the basis of historical development. The emergence and development of law, based on historical theory, depends on 2 categories of persons: legislators and jurists. The task of group 1 is the correct processing of legal norms, as well as timely bringing it to the legislator. As for jurists, their task is to grasp and express the mood of the people, to express their opinion in legal formulas. In addition, law is considered effective only when it is fully consistent with social development.
It is worth noting that this theory has certain advantages and disadvantages. On the one hand, historical development is indicated, which is inherent in the formation of all life on earth. On the other hand, other aspects of the formation of legal norms are not fully considered.
Natural Law Theory of Law
Hugo Grotius and Jean-Jacques Rousseau are followers of the natural legal theory of the emergence of law. They say that in addition to the norms established by the state, there is an integral and natural part of the law that nature has generated. Natural theory says that is inherent in every person from birth. Even now, modern jurists divide the right into two groups: positive and natural rights. This classification has official status thanks to Grotius and Russo.
The authors note that natural rights have priority over positive ones, as they arise from birth, regardless of the norms established by the state. In addition, the theory does not explain the reason for the emergence of rights, since it is believed that every person from the moment of birth becomes the owner of inalienable privileges.
Regulatory theory
The reasons for the emergence of law are explained by another theory - regulatory. It is characterized by rigidity, since the regulatory direction has arisen in Asian countries, where strict legal rules have been established to this day.
It is worth paying attention to the fact that harsh climatic and geographical conditions, as well as the necessary organization of military activity, have generated the totalitarian system of the state. The essence of the theory is the need to establish a strict order of all spheres of state and public life.
As historical practice shows, regulatory standards are necessary at any stage of the development of mankind, however, the emergence of property rights of citizens, the state, personal non-property rights, criminal law, as well as other institutions and industries are regulated exclusively by the official government of the country.
Conciliation Theory of Origin
The creators of a conciliatory concept are Berman and Anners. The authors speak mainly about the purpose of law. Berman and Anners were of the opinion that legal norms only exist in the event of a conflict. Thus, within the tribal community, law is necessary not to regulate public relations, but to resolve disputes.
Marxist theory of the origin of law
The emergence of civil law, criminal law, as well as a number of other branches is completely explained by Marxist theory. Her propaganda was actively conducted in the Soviet Union, since the authors, as you might guess, were Marx, Engels, Lenin and other Soviet jurists.
The essence of the theory is that legal norms express the class character and will of the ruling class. Moreover, the necessary component here is social status and economic status. It is worth noting that this school has a large number of advantages, namely:
- It provides an opportunity to thoroughly analyze the role of economic relations in society and their dependence on legal norms.
- The theory suggests that the complexity of social structures requires the most advanced normative regulators.
- Many monuments of law are dedicated to reflecting the will of the ruling class, which means that the role of this principle is almost impossible to challenge.
However, there are also certain drawbacks: the excessive elevation of the role of the economy in the light of the consideration of legal norms, underestimation of the peculiarities of culture, religion of the state, as well as the lack of consideration of foreign policy relations with foreign states.