The state, however, like law, are phenomena without which the present existence of peoples is unthinkable. Therefore, legal scholars made attempts to determine their formation, which began, by the way, back in the period BC. Therefore, a number of theories have been developed that explain the origin of the state and law.
The first theory is divine, it is also theological. According to her, the reasons and conditions for the emergence of the state and law were laid down by the higher mind. Or, based on the fact that the founder of this theory was Thomas Aquinas, by the will of the Lord God. It was believed that the state is the highest form of organization of the people, and the covenants transmitted by God should take the form of law. In this case, the state should be governed by the only person - the monarch, who in essence is "the governor of God on earth." This theory perfectly reflected the realities of the Middle Ages. It is worth noting that in the modern world there are states that are built on this basis. Moreover, they reflect not only the Christian faith.
The second theory is patriarchal. The origin of the state and law, according to it, is justified on the basis of the postulate of the sacredness of the family. So, the ancestor of the state is a family, which in the process of its development has grown to the size of a country. And the source of law according to this theory is the will of the father of the family (patriarch). In principle, up to the twentieth century, such views had the right to be, and even more, were reinforced by the very fact of the existence of absolute monarchies. The history of the state and law of Russia partially confirms this theory.
The third theory, it’s the theory of violence. According to her, the reasons and conditions for the emergence of the state lie in the principle of survival of the fittest. The authors, among whom were K. Kautsky and E. During, argued that in the process of development of human society there was always a need for submission and leadership of the strongest over the weak. And therefore, the apparatus of “legalized violence” and norms were created that enshrined the actions of the strong, who subsequently received the status of law.
The fourth theory is patrimonial. It is based on the fact that the origin of the state and law is based on the right of ownership of land plots. So, the formation of the state as a legal phenomenon is due to the fact that most of the land suitable for cultivation was concentrated around one individual. The rest were forced to rent these areas on the conditions that the landowner put forward. It is these conditions that later received the status of law.
The fifth theory, it is negotiable. The origin of the state and law was based on a social contract. J.-J. Rousseau, Hugo Grotius and many other figures of the Enlightenment presented the world with the idea that the state arose due to the fact that at one moment people agreed to unite in a special organization and transfer part of their rights to manage a certain group of the most prominent people. As a result, the latter developed norms of behavior acceptable to the majority, which were right.
The sixth theory is psychological. Spencer, Trubetskoy, Petrazhitsky, and Freud pointed out that a state could be formed only on the condition that some wanted to govern, and others - (in much larger numbers) to obey. They explained this by the fact that the character of a person is arranged either according to the first principle, or according to the second. Therefore, it is necessary to create a structure that takes into account the above trends.
The seventh theory is materialistic. Nominated by Marx and Engels, she explained that the state emerged from the transformed primitive communal system, and the right from privileges and taboos. The impetus for such changes was the socio-economic factors.
This is not to say that any of the theories is the only true one. The history of the state and law of Russia more than once proves this postulate. After all, in-depth study provides an opportunity to confirm both the elements of the materialistic and the postulates of the theory of violence, and the arguments of the patriarchal and patrimonial. Which once again proves that the problem of the formation of the state and law still has to be worked on.