The doctrine of polybia about the state. The teaching of the polybia about the cycle of political forms by the author of the concept of the Court of Forms of State Board
His views on the state and the right of Plato (427-348 BC) outlined in the books "State" and "laws".
The dialogue "State" is devoted to justice. The ideal of justice Plato saw in the division of labor, respectively, the needs and natural deposits. According to Plato, the principle of justice becomes the foundation of the model of the desired state device. He divides all citizens of such a state for three estates:
1) the wise men who manage the state;
2) guards guarding it;
3) merchants and artisans.
Plato considers four types of "perverted state device":
1) Timocracy;
2) oligarchy;
3) democracy;
4) tyranny.
All these types of state device are steps towards the degeneration of the state. In Timocracy, there is a passion for enrichment, which gradually develops into the domination of oligarchs. The oligarchy degenerates into democracy. Democracy degrades the worst form of government - tyranny. At the same time, Plato displays tyranny from democracy.
08 The teachings of Aristotle about politics, state and right. The theory of copyness.
Aristotle (384-322 BC. E.) outlined political and legal views in treatises "Politics", "Nikomakhova Ethics".
The goal of the state, according to Aristotle, is "the benefit of the life of all its members." For this, citizens must be virtuous. The very state is formed from the natural attraction of people to communicate. At the same time, slavery is ethically acquitted, because the slave is devoid of virtue and is able to perform only physical work.
Aristotle adhered to the principle of division of justice into two forms:
1) universal, established by law;
2) Private, which concerns the selection or exchange of property and honors between community members.
Aristotle highlighted six types of government: the correct is the monarchy, aristocracy and politics, and the wrong is tyranny, oligarchy and democracy.
The state ideal of Aristotle is poly-tia (mixed form of positive from the oligarchy and democracy).
09 The teaching of polybia on the cycle of political forms
Polybiy (approximately 200-120 BC) - the last major political thinker of ancient Greece. The main motive of the "history" written in 40 books is the path of Romans to world domination.
The description of the historical process in polybia is based on the idea of \u200b\u200bthe cyclical development of the world. It comes from the fact that social life exists from nature and is directed by fate. Like living organisms, any society passes the state of increasing, flourishing and, finally, decline. Completed, this process is repeated first. The development of a society of polybius treats as an infinite movement in a circle, during which "the forms of the board are changing, transfers one to another and returned again."
The cycle of political life is manifested in a consistent change of six forms of state. The first monarchy arises - the sole board of the leader or king, based on the mind. Separating, the monarchy passes into the opposite form of the state - in Tiracy. Tirana has the fact that the noble men will overthrow with the support of the people of the hated ruler. So establishment of the surveyor - the power of a few, pursuing the interests of the common good. Aristocracy, in turn, is gradually degenerated into the oligarchy, where few people rule, using power for compassion. By their behavior, they excite the dissatisfaction of the crowd, which inevitably leads to another coup.
The people, not believe more in the reign of kings or few, imposes care of the state for himself and establish democracy. Its perversion is the Globlera (the domination of mobiles, crowds) is the worst form of the state. "Then weaving the domination of strength, and the crowd gathering around the leader makes murders, expulsion, the redistribution of the Earth, until it turns completely and again will not find themselves the ruler and autocrat." The development of the state returns to its beginning and is repeated, passing through the same steps.
To overcome the cycle of political forms is capable only a wise legislator. To do this, he needs, assured polybium, to establish a mixed form of the state, combining the start of the monarchy, aristocracy and democracy, so that every power serve as oppose the other. Such a state would have been able to in a state of uniform fluctuations and equilibrium. " Historical examples of mixed building polybium found in the aristocratic Sparta, Carthage, in Crete. At the same time, he highled the political structure of Rome, where all three main elements are presented: monarchical (consulat), aristocratic (Senate) and democratic (popular assembly). The correct combination and equilibrium of these authorities of Polybius and explained the power of the Roman power, who conquered "almost the entire well-known world".
The political concept of polybia served as one of the links between the political and legal teachings of ancient Greece and ancient Rome.
Polybiy (approx. 200-120 BC) Greek historian, thinker, statesman, author of the concept of the Court forms of the Board of State. Main work: "Universal History".
His ideal - Socrates, his ideas. Also the teachings of the Stoics. The main point (the principle of stoicism) all that happened earlier and will happen again.
The state is developing naturally according to the law of nature and is a closed, cyclic process. As a result of natural development, the royal power appears, gradually the royal power is degenerated into tyranny. The identity of Tirana is hateful to the best people who begin to fight him for a common benefit. Aristocracy comes into the cut, but gradually the aristocracy is reborn into the oligarchy. Wealth initially causes hostility and struggle against wealth leads to the emergence of democracy. Democracy degenerates due to the influence of demagogues and degenerates to the overtrajrai (the domination of the force)
The main thing in any state is virtue. And for this, it is allowed to slow down, or stop the cyclicality of the state's development, by combining various positive qualities. Such a combination of positive qualities allows you to prevent such sad results. The Romean Rome serves as a model of an ideal state.
The ideological basis of the state is faith in God. In the crowd, religiosity should be supported. He says - good customs and laws make faithful and moderation Private life. Then sharpness and justice agrees.
The basis of the existence of society is the chosen form of government. State The device is determining in the development of the state and society. The form of the state provides equilibrium of the authorities. The satisfaction of all layers of common and allows the state to be the first in the military sphere and the housekeeper.
The combination of these authorities and ensured the power of Rome in the Mediterranean.
The cycle of political life is manifested in a consistent change of six forms of state. The first monarchy arises - the sole board of the leader or king, based on the mind. Enjoying, the monarchy passes into the opposite form of the state - in tyranny. Displeasure tyrants leads to the fact that noble men will overthrow with the support of the people of the hated ruler. So the aristocracy is established - the power of a few, pursuing the interests of the common good. Aristocracy, in turn, is gradually degenerated into the oligarchy, where few people rule, using power for compassion. By their behavior, they excite the dissatisfaction of the crowd, which inevitably leads to another coup.
The people, not believe more in the reign of kings or few, imposes care of the state for himself and establish democracy. Its perversion is the Globlera (the domination of mobiles, crowds) is the worst form of the state. "Then weaving the domination of strength, and the crowd gathering around the leader makes murders, expulsion, the redistribution of the Earth, until it turns completely and again will not find themselves the ruler and autocrat." The development of the state returns to its beginning and is repeated, passing through the same steps.
To overcome the cycle of political forms is capable only a wise legislator. To do this, he needs, assured polybium, to establish a mixed form of the state, combining the start of the monarchy, aristocracy and democracy, so that every power serve as oppose the other. Such a state would have been able to in a state of uniform fluctuations and equilibrium. " Historical examples of mixed building polybium found in the aristocratic Sparta, Carthage, in Crete. At the same time, he highled the political structure of Rome, where all three main elements are presented: monarchical (consulat), aristocratic (Senate) and democratic (popular assembly). The correct combination and equilibrium of these authorities of Polybius and explained the power of the Roman power, who conquered "almost the entire well-known world".
Polybiy (210-123 BC. E.) - a prominent Greek historian and a political figure of the Hellenistic period.
Reviews of polybia are reflected in his famous work "History in forty books." In the center of Polybia research - the path of Rome to domination over the whole Mediterranean.
In his attempt to holistic coverage of historical phenomena, it is based on the idea of \u200b\u200b"fate", according to which it turns out to be universal law and mind.
In the context of the "Universal History", the Polybius "Fate" appears as a historical fate as the synonym for the internal laws of a single historical process.
With all volumes, polybium is not free from traditional cyclic ideas about the development of socio-political phenomena, which is clearly manifested when the change of state forms as a change in the change in the framework of a certain closed event cycle. In this regard, the views of Polybia are under the noticeable influence of the ideas of Plato and Aristotle.
In general, the Polybia is characterized by a state view of the events that occur, according to which the state of the state plays a decisive role in all human relations.
The history of the emergence of statehood and the subsequent change of state forms of polybium (with reference to Plato and some of its other predecessors) depicts as a natural process committed according to the "law of nature". In total, there are, according to Polybia, six major forms of the state, which, in the order of their natural occurrence and shifts, occupy the next place in the framework of their full cycle: the kingdom (royal power), tyranny, aristocracy, oligarchy, democracy, Glohacery.
The origins of the human hostel he sees in the fact that inherent in all living beings - both animals and people - weakness naturally "encourages them to gather into a homogeneous crowd." And here, according to the indisputable order of nature itself, the master and the leader of the crowd becomes the one who surpasses all the other his bodily strength and spiritual courage.
Over time, the initial chief-autocratic leader is imperceptible and naturally turns into a polybia scheme, in the king to the extent that "the kingdom of reason is replaced by the domination of courage and strength."
Gradually, the royal power became hereditary. The kings changed the former lifestyle with its simplicity and concern for subjects, became over the measure to indulge in excesses. Due to those caused by this envy, hatred, discontent and rage of subjects "the kingdom turned into tyranny." This state (and shape) of the state of polybium characterizes as the beginning of the decline of power. Tirands - the time of the goat against the lords. And these are proceed from people of noble and brave, who do not want to tolerate the arbitrariness of Tirana. With the support of the people, such noble people overthrow tyran and establish aristocracy.
At first, the aristocratic rulers are guided in all their affairs about the "general good" concern, but gradually aristocracy degenerates into the oligarchy. It reigns the abuse of power, korestolyvy, chasing, drunkenness and gluttony.
Successful performance of the people against oligarchs leads to the establishment of democracy. Under the lifetime of the first generation of founders of the democratic form of government, equality and freedom are highly appreciated. But gradually the crowd, accustomed to fodder at the expense of other people's servants, chooses a brave ambes (demagogue) in the leaders, and herself is eliminated from public affairs. Democracy degenerates in the overtrach. In this case, "the state will decorate himself with the noble name of free popular government, and in fact will become the worst from the state, the overtrahyra."
From the point of view of the steepness of the state forms of the Globlera, is not only the worst, but also the last step in changing the forms. Under the Glohacracy, "the rule of force, and the crowd gathering around the leader makes murders, expulsion, the redistribution of the Earth, until it does completely and again will not find themselves the ruler and self-container." The circle of changing state forms is thus closed: the final path of the natural development of the state of the state is connected to the initial one.
Polybius notes instability inherent in each single simple form, since it embodies in itself only one beginning, which is inevitable by the very nature of the degeneration in its opposite. So, the kingdom is accompanied by tyranny, and democracies - the unbridled domination of strength. Based on this polybium, it concludes that "the undoubtedly perfect form should be admitted to this, which combines the features of all forms named above," that is, the royal authorities, aristocracy and democracy.
The main advantage of such a mixed form of the reign of polybium, who experienced a large influence of the relevant ideas of Aristotle, sees in ensuring the proper sustainability of the state that prevents the transition to the perverted forms of government.
The first one who understood this and organized a mixed rule, was, according to Polybia, Lactedamevo law.
Referring to the modern state of affairs, Polybius notes that the Roman state is distinguished by the best device. In this regard, he analyzes the powers of the "three authorities" in the Roman state - the authorities of the consuls, the Senate and the people expressing the royal, aristocratic and democratic starts respectively.
An important circumstance that ensures the strength of the Roman state is, by polybia, the fact that "the god feasibility of the Romans is the basis of the state." Of course, Issues Polybius if the state consisted of sages, there would be no need for this, but, dealing with the crowd, should support religiosity in it.
Polybius shared naturally legal representations of the Stoics. Customs and laws are characterized by polybia as two main principles inherent in each state. He praises "good customs and laws", which "make admonition and moderation into the privacy of people, in the state we are watering the meekness and justice." Polybiy emphasized the relationship and compliance between good customs and laws, well-in-law people and the right device of their public life.
Polybius representations about the "mixed" form of government were widely used in various projects of the "best" government device, and in the future they had an impact on the development of the theory of separation of the authorities.
Polybius said that the development of the state, the change of its types (varieties) -tural process, defined by nature.
The state develops on an infinite circle, which includes the phases of the nucleation, formation, flourishing, decline and disappearance. These phases go one to another, and the cycle is repeated again.
The first arises monarchy- The sole board of the leader or king, based on the mind. Decaying the monarchy goes into tyranny. The discontent of Tyran leads to the fact that noble men with the support of the people overthrow the hated tyrana. So set aristocracy - The power of a few pursuing the interests of the common good. Aristocracy in turn is gradually degenerated into oligarchywhere they rule a few using power for compassion. By their behavior, they excite the people, which leads to a coup. The people, not believe more in the reign of kings and few, laying care about the state on itself and establish democracy. Its perverted form ochlocracy- The worst form of the state. Then the power of the force is returned, and the crowd kills around the leader kills, until it finally and again does not find himself a self-adjustment. The development of the state returns to its beginning and is repeated, passing through the same steps.
2. Political and legal teaching Rousseau
Jean-Jacques Rousseau (1712-1778) is one of the bright and original thinkers throughout the history of public and political teachings.
His social and political and legal views are set forth in such works as: "The reasoning on the issue: did the revival of science and art contributed to the purification of morals?" (1750), "reasoning on the origin and grounds of inequality between people" (1754), "On political economy" (1755), "judgment about the eternal world" (first published after death, in 1782), "On a public contract, or principles of political law "(1762).
The problems of society, states and rights are covered in the teaching of Rousseau from the standpoint of substantiation and protection of the principle and ideas of popular sovereignty.
The prevalent at the time of the presentation of the natural state of Rousseau uses as a hypothesis for presenting its new ones, views on the whole process of the formation and development of the spiritual, social and political and legal life of mankind.
In the natural state, in Rousseau, there is no private property, everyone is free and equal. Inequality here first only the physical, due to the natural differences of people. However, with the advent of private property and social inequalities that have contradicted natural equality, the struggle between the poor and rich. Following the destruction of equality, according to Rousseau, "the most terrible trouble-unjust seizures of the rich, missing poor," "constant clashes of the right of strong with the right one who came first."
The way out of such conditions, inspired by the "cunning" arguments of the rich and however, due to the life interests of all, was a convention on the creation of state power and laws that everything will be obeyed. However, having lost its natural freedom, the poor did not find freedom of political. Created by the contract state and laws "put new ways on weak and gave new forces to the rich, irrevocably destroyed natural freedom, forever established the law of property and inequalities, turned the dexterous usurpation into the unshakable right and for the benefit of several ambitions, they had been involved in the benefit of several ambulances. , slavery and poverty. "
The inequality of private property, supplemented by political inequality, led, according to Rousseau, ultimately to absolute inequality in despotism, when, in relation to the despot, everyone is equal in their slavery.
In contrast to such a false, vicious and harmful for humanity, the direction of development of society and the state of Rousseau develops its concept "creating a political organism as a genuine agreement between nations and rulers."
At the same time, the main task of a genuine social contract holding the beginning of the society and the state and the margin of transformation of the accumulation of people to the sovereign people, and every person - in a citizen, he sees in the creation of "such a form of an association that protects and protects everything with a general strength of the personality and property of each of each Members of the Association and thanks to which everyone, connecting with everyone, obeys, however, only to itself and remains as free as before. "
Each, transmitting in a common heritage and puts under the uniform leadership of the total will their personality and all its strength, turns into an inseparable part of the whole.
The justified Rousseau Concept of the public contract expresses the ideal idea of \u200b\u200bits ideas about the state and the right.
The main idea of \u200b\u200bRousseau is that only the establishment of the state, political relations and laws corresponding to its concept of a public contract can justify - from the point of view of the mind, justice and the rights of the transition from the natural state in civil. Such ideal representations of Rousseau are in an obvious contradiction with its own guesses on the role of private property and inequality in public relations and due to these objective need to move to the state.
Already the first sentence of the "public contract" - "A person is born free, but he is in the skies everywhere," aims in search of ways to resolve this contradiction with the orientation on the idealized features of the "Golden Age" of a natural state (freedom, equality, etc.). Such idealization of the natural state is dictated by the ideal requirements of Rousseau to the civil status, which should be in a new (political) form to compensate to people that they allegedly have already had before the formation of the state and what they, therefore, are unfairly devoid in the face of the established misunderstanding. Thus, the overestimation of the merits of the past gives the Russoist doctrine proper high criteria and scale for criticism of modernity and the requirements for the future. By the way, according to the same logic, but with the opposite goals, supporters of the absolute monarchy, on the contrary, argued that a person is born by the endless subject.
In the interpretation of the Rousseau, the modern feudal system, critical of the bourgeois-democratic principles of the public contract, is deprived of its legitimacy, a fair and legitimate nature - in a word, the right to existence: it keeps on the right, but on force.
Strength, according to Rousseau, does not create rights - neither in natural or civil condition. The moral at all can not be the result of physical power.
The basis of any legitimate authority among people can only be agreement.
The conditions for the transition to the State Rousseau interprets as follows: what is alienated by each isolated individual in favor of the whole (people, sovereign, state) formed in the form of natural equality and freedom, refunds to him (but already as an inseparable part of this whole, member People-sovereign, citizen) in the form of contractual (positive) rights and freedoms. Taken by saying the words of Rousseau, as if equivalent to the "exchange" of the natural way of life of people to civil lifestyle.
Thanks to the public contract, everyone turns out to be "equal as a result of the agreement and right."
At the same time, Rousseau notes that "in case of bad reins, it is equality only apparent and deceptive; It serves only for the poor to hold in his poverty, and in the rich, keep everything that he assigned. " Not denying the most private ownership, Rousseau at the same time stands for the relative alignment of the property situation of citizens and with these egalitarian positions criticizes, luxury and surplus, polarization of wealth and poverty.
At the heart of the public contract and the empowerment of the sovereignty lies general will. Rousseau at the same time emphasizes the difference between the total will from the will of all: the first means in mind the common interests, the second interests are private and represents only the sum of the exposed will of individuals.
Defending the domination in the state and its laws of common will, Rousseau sharply criticizes all sorts of partial associations, batch, groups and associations, which come into inevitable competition with sovereign. Their will becomes general in relation to their members and private towards the state. It distorts the process of forming a genuine total will of citizens, since it turns out that there are not so many voters as many people, but only as many organizations.
Roussely the difference of the will of all and the total will in its own way reflects the fact that in civil condition there is a distinction between the individual as a private person (with its own private interests) and the same individual as a citizen - a member of the "Public Person", a general interest carrier . This distinction, which in the future, the basis for the concept of human rights and a citizen and played a significant role in the constitutional and legal consolidation of the results of the French bourgeois revolution, in fact, means the split person to a member of civil society and a citizen of the state.
Obligations connecting people with a community organism (state) are immutable only because they are mutual, provide for equality of their rights and obligations.
At the same time, sovereign, according to Rousseau, is not related to his own laws.
Sovereign "stands above and judge, and the law." It is with such an understanding of the role of Soverene Russo connects the idea of \u200b\u200bhis right to pardon or the liberation of the perpetrator of the punishment provided for by law and a court-specific.
The power of sovereign, in Rousseau, includes its unconditional right to the life and death of subjects.
In its idealized design of the national sovereignty, Rousseau rejects the requirements of any guarantees for the protection of the rights of individuals in their relationship with state power.
The appropriate guarantees, according to Rousseau, are needed against subjects to ensure their commitment to sovereign. Hence, according to Rousseau, and the need for a compulsory moment of the relationship between the state and the citizen.
In general, the public agreement, according to Rousseau, gives a political organism (state) unlimited power over all its members. This power sent by the General Will, he refers to sovereignty. In the sense of the concept of Rousseau, sovereignty is one, and it may generally have to go about one single sovereignty-sovereignty of the people. At the same time, under the "people", as the only sovereign, Rousseau refers to all participants in the public agreement (i.e. the adult male part of the entire population, the whole nation), and not some special social layer of society (Society, Poor, "Third Class "," Workers ", etc.), as they began to interpret subsequently radical supporters of his concept of folk sovereignty (Jacobins, Marxists, etc.).
With the understanding of the sovereignty as the total will of the people, the statements of Rousseau are associated with the sovereignty that sovereignty. Both the alienation of sovereignty from the people in favor of those or other individuals or organs and its division between the various parts of the people, according to the logic of Rousseau's teachings, would mean the denial of sovereignty as the total will of the entire people.
The people like sovereign, as a carrier and an expressant of a common will, in Rousseau, "Maybe only by himself." Rousseau, essentially denied as a representative form of power (parliament or another legislative body in the form of popular representation) and the principle and ideas of the division of the Supreme, sovereign power in the state for various power.
The legislative power as itself is sovereign, state power can and should, in Rousseau, are carried out only by the people themselves directly.
Executive Power (Government) is not created on the basis of a public contract, but by decision of the sovereign as a mediating of the body for relations between the subjects and sovereign.
Explacing the ratio of the legislative and executive authorities, Rousseau notes that every free action has two reasons that together produce it: one of which is moral, the other is physical. The first is the will, defining the act; Second-force, executing it.
The executive authority is authorized by sovereign to fulfill the laws and maintain political and civil liberty. The device of the executive authority as a whole should be such that "it has always been ready to sacrifice the government for the people, and not the people for the government."
Depending on the one who was awarded the executive (to all, some, one), Rousseau distinguishes such forms of government as democracy, aristocracy, monarchy. These differences in Russian teaching play a subordinate role, since it is assumed that in all forms of government, sovereignty and legislature belong to the whole people.
At the same time, all the Board through Russian laws considers the Republican Board.
To maintain the provisions of the public contract and control over the activities of the executive branch, according to Rousseau, the people's assembly should be convened periodically, which should be put on a vote separately two questions: "First: whether sovereign can save the real form of government. Second: whether to leave the people in the hands of those on whom it is currently entrusted, "
The people, in Rousseau, have the right not only to change the form of government, but also to terminate the public agreement itself and again return their natural freedom.
Rousseau distinguishes the four kinds of laws: political, civil, criminal and laws of the fourth kind, "most important of all", "" morals, customs and especially public opinion. " At the same time, he emphasizes that only political laws include its subject matter.
In relation to these political (basic), Rousseau law notes that they are generally combined with the universality of the subject, therefore such a law considers subjects as a whole (and not as individuals), and the actions as distracted (but not as separate actions).
The goal of any system of laws is freedom and equality. Freedom, emphasizes Rousseau, can not exist without equality.
In the spirit of Montesquieu and other authors, Rousseau speaks of the need for accounting in the laws of the originality of the country's geographical factors, classes and morals of the people, etc. and the pores of the maturity of the people should be waited before subjugate to its laws. From these positions, he criticizes Peter I for exposing his people "Civilization too early", when he "has not yet matured for civil society charters"; Peter "I wanted to first create Germans, the British, when it was necessary to start with the creation of Russians."
Laws are the necessary conditions for the Civil Association and Dormitories. But the creation of a law system is a great and difficult, which requires large knowledge and insight to achieve an union of mind and will in the public organism. This "creates the need for the legislator", under which the founders of states, reformers in the field of politics, law and morality are meant.
But such a great legislator explains Rousseau, this is the founder of the state, and not a magistracy or sovereign. The activity of such an extraordinary legislator enlightens the people and prepares the necessary soil for his own speech as a legislator.
Legislative power Rousseau characterizes as "the heart of the state."
In cases of extreme danger, when it comes to the salvation of the state system and the Fatherland, "you can suspend the sacred force of laws" and a particular act to impose care for public security at the "worthy", that is, to establish a dictatorship and elect a dictator. At the same time, Rousseau emphasized the short-term nature of such a dictatorship, which in no case should be extended.
Polybiy (200-120 BC),the last major political thinker of ancient Greece. The main work "History" in 40 volumes. Her motive is the path of Romans to world domination.
The emergence of states and replacing the forms of the reign of polybium depicts as a natural process committed according to the "law of nature". Like living organisms, any society undergoes a state of birth, heyday and decline. Completed, this process is repeated first. The history of society is an infinite movement in a circle, where "the forms of the board are changing, go to another and return again."
During the circulation, a consistent change of state forms occurs. The first monarchy is the sole board of the leader (king) based on the mind. Decaying, the monarchy passes in its opposite - tyranny. "Noble men" overthrow tyranny and establish aristocracy, where the power of a few pursues the overall benefit. Aristocracy degenerates into the oligarchy. The people, the desired power of one or few, establishes their own power - democracy. Its perversion is the Globlera (the power of the crowd). With it, the domination of the force, the redistribution of ownership, "people are not happy and again acquires the ruler." Overcome the cycle of political forms is able to wise legislator. To do this, it is necessary to establish, following the example of Rome, a mixed form of government, combining the start of the monarchy (consults), aristocracy (Senate) and Democracy (National Assembly).
It was the combination that Polybiy believed and allowed Rome to become a powerful power that conquered the "world". The political concept of polybia served as a link between the legal views of the ancient Greece and ancient Rome.
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Russian thinkers about the legal state. P. Shershevich, B.A. Kistyakovsky, S.A. Kotlyarevsky.
Cicero about the state and right.
Mark Tully Cicero (106-43 BC) - Famous speaker, statesman and writer from riders. The states of the state and the right are devoted to its special work "On the State" and "On Laws".
Cicero comes from the proposals of the aristocracy of ideas about the natural origin of the state. Civil communities arise not to establish, but by nature, because people are endowed with the desire for communication. The first reason for the unification of people in the state was "not so much their weakness, how much the innate need to live together."
But the Cicero state determines not only as a natural organism, but also as an artificial education as a matter, the doodle of the people, "folk establishment". Under the people are understood "the combination of many people related to among themselves consent in matters of law and community of interests." Consequently, the right acts as the basis of the state, and the very state itself is not only a moral, but also the legal community. Thus, Cicero stands at the origins of the legalization of the state of the state, which in the future had many adherents, up to modern supporters of the idea of \u200b\u200bthe "legal state."
The purpose of the state is the protection of property interests of citizens. Protection of ownership is one of the reasons for his education. Violation of the inviolability of private and state ownership of Cicero characterized as desecration and violation of justice and law.
Cicero paid great attention to the analysis of various forms of the State Device, Search "best" forms. Depending on the number of ruling, he distinguished the three simple forms of the Board: the royal power, the power of optimates (aristocracy) and the popular power (democracy). All these forms are imperfect and if there was a choice among them, then preferably the royal, and in the last place - "democracy".
However, the royal power is fraught with arbitrariness and easily degenerates in tyranny, the power of optimates turns into domination of the clics of rich and noble, democracy leads to the arbitrariness of the crowd, to its tyranny. These ugly powers are no longer forms of state, since in such cases it is absent at all, because There are no common interests, the common cause and the general obligatory for all right.
Prevent such degeneration of statehood can be prevented only in the conditions of the best, mixed type of government. The political ideal of Cicero is the Aristocratic Senate Republic, supported by the "consent of the clasions", the "dispossessment of all classes", combining the start of the monarchy (the authorities of the consuls), aristocracy (the Board of the Senate) and Democracy (People's Assembly and the Power of Tribunov).
Cicero, speaking of the people in its definition of the state, meant exclusively landowners and major traders. Rostovists, small traders, owners of craft workshops, all workers he ranked among the despicable people. With such people, worthy citizens can not be any common interests. Naturally, it concerned the slaves. Slavery is due to the nature itself, which gives the "best people dominion over weak." To the slaves, Cicero believed, should be treated as mercenaries. Such an approach to defining slavery, a noticeable step forward, in comparison with the slave as a "talking gun".
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The natural right (the highest, true law), according to Cicero, arose "before than any kind of written law." From here, the requirement implies that human establishments (writing laws, political institutions) correspond to justice and right. The laws adopted in the state must comply with the institution established in it, the traditions and customs of the ancestors. To strengthen the Divine authority of the law, he must have a preamble. At the same time, everything should be subject to the law.
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Chissero's written right divides private and public. The so-called international law is interpreted as part of the positive law of different nations and as part of the natural right of international law (ie, as an international natural law). He was a supporter of compliance with the obligations imposed by international treaties. Conducting the difference between fair and unfair wars, he considered an unfair and wicked all kinds of war, which "was not procured and declared."
Polybiy (210-128 BC) - Greek thinker, historian, author of "Universal History".
Main work: "Universal History" in 40 books (most of them were written after 146 BC, after subordination of Eldlants Romans).
The doctrine of the Stoikov had a noticeable impact on the views of Polybia (210-123 BC) - a prominent Greek historian and a political figure of the Hellenistic period.
Reviews of polybia are reflected in its famous work "History in forty books." In the center of Polybia research - the path of Rome to domination over the whole Mediterranean.
The history of the emergence of statehood and the subsequent change of state forms of polybium (with reference to Plato and some of its other predecessors) depicts as a natural process performed according to the "Law of Nature". In total, there are, according to Polybia, six major forms of the state, which, in the order of their natural occurrence and shifts, occupy the next place in the framework of their full cycle: the kingdom (royal power), tyranny, aristocracy, oligarchy, democracy, Glohacery.
From the point of view of the steepness of the state forms of the Globlera, is not only the worst, but also the last step in changing the forms. Under the Globleracy, "the domination of strength is waging, and the crowd going around the leader makes murders, expulsion, the redistribution of the earth, until he does completely and again will not find themselves the ruler and autocrat." The circle of changing state forms is thus closed: the final path of the natural development of the state of the state is connected to the initial one.
Polybius notes instability inherent in each single simple form, since it embodies in itself only one beginning, which is inevitable by the very nature of the degeneration in its opposite. So, the kingdom is accompanied by tyranny, and democracies - the unbridled domination of strength. Based on this. Polybius concludes that "the undoubtedly perfect form should be admitted to this, which combines the features of all forms named above", i.e. the royal power, aristocracy and democracy.
The main advantage of such a mixed form of the reign of polybium, who experienced a large influence of the relevant ideas of Aristotle, sees in ensuring the proper sustainability of the state that prevents the transition to the perverted forms of government. The first one who understood this and organized a mixed rule, was, according to Polybia, Lactedamevo law.
Referring to the modern state of affairs, Polybius notes that the Roman state is distinguished by the best device. In this regard, he analyzes the powers of the "three authorities" in the Roman state - the authorities of the consuls, the Senate and the people expressing the royal, aristocratic and democratic starts respectively.
10. Features of the development of ancient Roman political and legal thought.
The history of ancient Rome includes three periods:
1) Tsarsky (754-510 BC);
2) republican (509-28 BC);
3) Imperial (27 BC - 47B N.EE).
In II century BC, after the conquest of the Romans of Greek policies, the political and legal teachings of Greece had a strong influence on the formation of the views of Roman thinkers. The flourishing of Roman political and legal thought is to the republican and imperial periods. In the era of the republic, Cicero creates its works and the creative activity of Roman lawyers begins, which reaches a heyday in the imperial period. In i century AD Christianity is born, and already in IV century. It becomes the state religion of the Roman Empire. With the advent of Christianity, the subject of political and legal research and the main problem becomes the ratio of church and the state.
Political and legal teachings of ancient Rome had a lot in common with political and legal teachings of antique Greece. The similarity of the political thought of the ancient Greeks and the Romans was determined not only by the fact that ideological concepts in these countries were formed on the basis of similar socio-economic relations, but also in deep continuity in the development of their culture. Ancient Rome, for a long time remaining on the periphery of the ancient world, was forced to pull up to the level of advanced policies of Greece, adopt her culture. The conquest of the Rome of Greek policies marked the beginning of the Hellenization of the Roman society, i.e. The widespread spread of Greek culture among the Romans. In the Epoch of the Empire, these processes intertwined with the processes of mutual influence of Greek, Eastern and actually Roman cultural traditions.
Political and legal exercises in ancient Rome were formed on the basis of philosophical directions, which were transferred from Greece. In their instructions on philosophy, Roman thinkers usually reproduced Greek teachings, changing and adapting them in relation to Roman conditions. When developing political concepts, Roman authors relied on the presentation of the states of state borrowed from the Greek sources, on the relationship between the law and justice, about the natural right, etc.
The novelty and the originality of the political views of Roman thinkers was that they were nominated by ideas that meet the relations of a mature slave-ownership society. Two terms of ideological representations can be distinguished, in which the peculiarity of the Roman political and legal thought was most pronounced.
The first of these should include changes in the political theory caused by the development of private property and slavery relations. The emergence of large land ownership and the concentration of wealth accompanied by the deepening of social conflicts, set the dominant classes before the need to strengthen the legal protection of property relations. The awareness of this need caused their increased interest in legal means to consolidate their domination, gave rise to the idea that the state serves to protect property and keeps the consent of citizens regarding the right. In the works of supporters of slave-owned nobility, the general place are becoming definitions of slave as things like a "speaking gun", etc.
The result of the practical activity of lawyers in the interpretation of laws was the separation of jurisprudence into an independent branch of knowledge. Over time, it acquires the status of the source of law. The works of Roman lawyers receive a detailed justification of the institutions and the norms of the current law, including the legal status of free and slaves, the classification of property transactions, the content of property rights and the order of inheritance.
The second circle should include changes in the political theory, reflecting the restructuring of the state mechanism in the Epoch of the Empire, when the republican form of government was replaced by the promosterochemical regime. The ruling Tip refused during this period from political ideals, which was followed by a polis of aristocracy. For the official ideology of the Roman Empire, the ideas of cosmopolitanism, the world rule of the Romans are characterized, as well as the concept of unlimited imperial power and the state cult of the ruling emperor.
The philosophy of the Stoikov provided a significant impact on the ideology of the Roman society. Her followers (Seneca, Mark Azeri) reasoned about the "spiritual equality" of all people, including the Lords and slaves, their impotence to change the fate, about the need to obey the world law. The mystical sides and the pessimism of the exercise of the Stoics intensified with the growing crisis of the crisis of a slave building. Many ideas of stoicism were perceived by Christianity - ideological course originated among the social bases of the Roman Empire. Throughout the II-III century. Christian religion gradually lost its original Bunlet spirit, and in the IV century. It was elevated to the rank of the official ideology of the Roman state.
11. Cicero.
Mark Tully Cicero (106-43 BC. Er) - the famous Roman speaker, a lawyer, a statesman and thinker. In its extensive creativity, considerable attention is paid to the problems of the state and law. Specially these issues are covered in his works "about the state" and "On the laws".
The state (respublica) Cicero determines as a matter, the property of the people (RES Populi). At the same time, he emphasizes that "the people are not any connection of people collected together in any way, but the combination of many people associated between themselves consent to the rights and community of interest." Thus, the state in the interpretation of Cicero appears not only as an expression of the overall interest of all its free members, which was also characteristic of ancient Greek concepts, but at the same time as a coordinated legal communication of these members as a certain legal education, "General Law and Order". Thus, Cicero stands at the origins of the legalization of the state of the state, which in the future had many adherents, up to modern supporters of the idea of \u200b\u200bthe "legal state."
The main cause of the origin of the state of Cicero was not so much in the weakness of people and their fear (Polybia point of view), but in their innate need to live together. By dividing in this matter, the position of Aristotle, Cicero rejected the idea of \u200b\u200bthe contractual nature of the emergence of the state in his time.
The influence of Aristotle is noticeable and in the interpretation of the family of the role of the family as an initial cell of society, from which the state is gradually and naturally. He noted the initial connection of the state and property and shared the position of the Stoic of Panestia that the cause of state education is to protect the property. Violation of the inviolability of private and state ownership of Cicero characterizes as desecration and violation of justice and law.
The emergence of the state (also rights) is not in the opinion and arbitrariness of people, but according to the universal requirements of nature, including according to the rally of human nature, in the interpretation of Cicero, it means that by nature and the essence they (state and law) are divine character and Based on the universal mind and justice. The study of all of nature, noted Cicero, leads to an understanding that "the mind rules the whole world." This provision, formulated by another ancient-growing philosopher anaxagor, is used by Cicero to substantiate his understanding of the "nature" as a conditioned and permeated divine will of the universal source of reasonable and fair establishments and actions of people. It is because of the fact that people themselves are endowed with the "seeds" of the mind and justice and, therefore, they are available to comprehend the Divine began, the very emergence of ordered human communication, virtues, states and rights became possible.
The mind is the highest and best of the soul, the "royal empires", curling all the lowest feelings and passions in man (greed, thirst for power and glory, etc.), "Monster of the Soul". Therefore, Cicero wrote, "With the domination of wisdom, there is no place for the passions or for anger, or for rapid acts."
In the course of the traditions of the ancient Greek thought, Cicero paid great attention to the analysis of various forms of the state device, the emergence of some forms from others, the "cycle" of these forms, the search for the "best" forms, etc.
Depending on the number of ruling, he distinguished the three simple forms of the Board: the royal power, the power of optimates (aristocracy) and the popular power (democracy). "And so, when the Supreme Power is in the hands of one person, we call this one king, and such a state device is the royal power. When it is in the hands of the elected, then they say that this civil community is managed by the will of the optimates. Peoples ( After all, it is called it) is such a community in which everything is in the hands of the people. "
All these simple forms (or species) of the state are not perfect and not the best, but they, by Cicero, are still tolerant and can be quite durable, unless those bases and connections are preserved (including legal), which for the first time firmly united people By virtue of their overall participation in the creation of the state. Each of these forms has its advantages and disadvantages. If there was a choice among them, preference is given to the royal power, and democracy is put to the last place. "In favor of his own," Cicero writes, "the kings are attracted to themselves, the wisdom is optimates, freedom - nations." The listed advantages of various forms of government, according to the thought of cicero, can and should be in their totality, relationships and unity are presented in mixed (and therefore the best) form of the state. In the simple form of states of the state, these merits are represented by one-sided, which necessitates the shortcomings of simple forms leading to the struggle between the various layers of the population for power, to change the forms of power, to their degeneration to "wrong" forms. It is possible to prevent such a degeneration of statehood, according to Cicero, it is possible only in the conditions of the best (i.e. mixed) of the state of the state device formed by uniformly mixing the positive properties of the three simple forms of the Board. "For, he," he emphasized, it is desirable that in the state there was something outstanding and regulatory for one part of the government to be given and presented the authority of the championships, and some cases were provided to the judgment and will of the people. " As the most important advantages of such a state system, Cicero noted the strength of the state and the legal equality of its citizens.
As the path to the mixed form of the Board of Cicero (after Polybius), the evolution of Roman statehood was interpreted from the initial royal authority to the Senate Republic. At the same time, the analogy of the royal power, he saw the authorities of magistrates (and, above all, the consuls), the power of optimates - in the powers of the Senate, the People's Authorities - in the authorities of the People's Assembly and People's Tribunov. The concept of the best (mixed) form of the state, unlike the Platonic projects of the ideal state, Cicero considered it really feasible, implying the practice of the Roman republican statehood for the better hours of its existence ("in the ancestors"). Platonovsky state is, rather, not a reality, but only a desire, it "is not that it could exist, but what it would be possible to see the reasonable basics of citizenship."
Many attention in the work of Cicero is given to praise the virtues of a true statesman and an ideal citizen. The wise statesman, according to Cicero, should see and predict the paths and turns in the affairs of the state in order to prevent the unfavorable movement of events (change of the forms of government to the disastrous side, deviation from the common good and justice) and to promote the strength and durability of the state as a "common law enforce" .
The person who enters the affairs of the state should be wise, fair, leaning and eloquent. It should, in addition, to be knowledgeable in the exercises about the state and "to own the fundamentals of law, without knowledge of which no one can be fair."
In the extreme case, when the very well-being of the state as the common cause of the people, with the consent of the last statesman, according to Cicero, should "as a dictator establish in the state". Here the politician does not perform for their own mercenary purposes, but in common interests as a savior of the republic.
The duties of an ideal citizen, according to Cicero, are due to the need to follow such virtues as the knowledge of truth, justice, the greatness of the spirit and decency. A citizen not only should not harm others himself, violate someone else's property or to make other injustices, but, in addition, it is obliged to assist the victims of injustice and work for a common good. Having fully praising the political activity of citizens, Cicero emphasized that "there are no individuals in the protection of freedom of citizens." He also noted the debt of a citizen to defend Fatherland as a warrior.
Appeals to nature, to its mind and laws are also characteristic of the legal theory of Cicero. At the heart of the right lies inherent justice. And this justice is understood by Cicero as an eternal, unchanged and inalienable property and nature in general, and human nature. Consequently, under the "nature" as a source of justice and rights (rights by nature, natural law) in his teaching meaning the whole space, the whole person surrounding the physical and social world, the forms of human communication and a hostel, as well as human being, covering it Body and soul, outdoor and inner life. All this "nature" (by virtue of its divine principle) is inherent in the mind and lawsuit, a certain order. It is this spiritual property of nature (its intelligent-spiritual aspect), and not its subject and bodily material composition, which occupies a subordinate and secondary place (as a body in relation to the soul, sensual part of the soul in relation to the reasonable part of it), and is , by cicero, genuine source and carrier of natural law.
Cicero distinguishes natural and positive law. It gives the following detailed definition of natural law: "The true law is a reasonable position corresponding to nature, spreading on all people, constant, eternal, which calls for the execution of debt, ordering; forbidding, the crime scares; it, however, nothing when it It is not necessary, does not order honest people and does not prohibit it and does not affect the dishonest, ordering them or forbidden. To offer a complete or partial abolition of such a law - blasphemy; how much limit its action is not allowed; cancel it is completely impossible, and We are neither by the decision of the Senate nor the decision of the people to free themselves from this law. "
This "true law" is the same everywhere and always, and "one eternal and constant law will spread at any time at any time, and there will be one common as if the mentor and the lord of all people - God, the creator, judge, author of the law ".
In his teaching on the natural law, Cicero was under great influence of the respective ideas of Plato, Aristotle and a number of Stoikov. This influence is noticeable and where he sees the creature and the meaning of justice (and, consequently, the basic principle of natural law) is that "she possesses each of its own and retains equality between them."
Justice, according to Cicero, requires not to harm others and not violate someone else's property. "The first requirement of justice," he noted, "the one does not harm anyone, if only it will not be inspired by injustice, and then that everyone enjoys a common property as common, and privately as yours." From these positions, he rejected such actions of Roman populations as the cassation of debts, the infringement of major landowners and the distribution of money and property with their adherents and plebs taken away from the legal owners.
The natural right (the highest, true law), according to Cicero, arose "before anything written law, or rather, before, than any state was generally founded." The state itself (as "common law and order") with its establishments and laws is by its essence the embodiment of the fact that in nature there is justice and the right.
From here, the requirement implies that human establishments (political institutions, written laws, etc.) correspond to justice and right, for the latter do not depend on the opinions and discretion of people.
The right is established by nature, not human decisions and decrees. "If the rights were established by the commandments of peoples, decisions of the championships, sentences," Cicero wrote, there would be the right to robbing, the right to adultery, the right to impose substrate wills if these rights could receive approval by voting or a crowd solution. " The law established by people cannot disrupt the order in nature and create the right from the cure or good of evil, honest out of shameful.
Compliance or inconsistency of human laws in nature (and natural law) acts as a criterion and measured their justice or injustice. As an example of laws contrary to justice and law, Cicero pointed out, in particular, on the laws of thirty Tiranans, rules in Athens in 404-403. BC, as well as the Roman Law 82 BC, according to which all the actions of Sullah as Consul and Prosonsula approved and he was provided with unlimited powers, including the right of life and death towards Roman citizens. Such unfair laws, like many other "fellow resolutions of peoples," according to Cicero, "deserve the names of the law no more than decisions, with the overall consent accepted by the robbers."
12. Roman lawyers.
In ancient Rome, the lawsuit initially was the case of pontiffs, one of the priests teams. Every year, one of the Pontiffs reported to individuals the position of the Board of Legal Affairs. About 300 g. BC. e. Jurisprudence is freed from the pontiffs. The beginning of secular jurisprudence, according to legend, is associated with the name of Gneta Flavia.
The activities of lawyers to permit legal issues included:
1) Respondere - answers to legal issues of individuals,
2) Cavere - Message of the necessary formulas and assistance when conclusted transactions,
3) Agere - a message of the formula for doing business in court.
Moreover, lawyers made their opinion on the case in the form of a written appeal to the judges or in the form of a protocol, which contained a recording of the oral consultation and was drawn up with witnesses. Based on the sources of the current law (the usual law, the laws of the tables, the legislation of the people's assemblies, the Edicts of magistrates, the Senatesconsons and the Constitution of Emperors), lawyers in the analysis of certain cases interpreted existing legal norms in the spirit of their compliance with the requirements of justice (aequitas) and in the case of conflicts Often, the old standards were changed taking into account new ideas about justice and fair law (Aequum Ius).
Such a reversible (and often human presentation) interpretation of lawyers was motivated by the search for such a formulation of the prescription, which the fair legislator would give in the changed conditions. The adoption of legal practice of a new interpretation (primarily due to its argument and authority of its author) meant recognition of its content as a new rule of law, namely the IUS Civile standards (Civil Law), which covered, also the usual law, the legislation of the people's assembly Pretorous law. The reversible activity of lawyers ensured the relationship of various sources of Roman law and facilitated a combination of stability and flexibility in its further development and update.
The Roman jurisprudence reaches his heyday in the last period of the republic and especially in the first two and a half century of the empire. Already the first emperors sought to enlist the support of influential jurisprudence and, if possible, subjugate it to their interests. To this end, outstanding lawyers since the reign of Augustus received a special right to give answers on behalf of the Emperor (Ius Respondendi). Such answers used great authority and gradually (as the power of the princex, which was first not a legislator) became mandatory for judges, and in the III century. On the individual provisions of classic lawyers referred to the text of the law itself.
From the second half of the III century. The decline of Roman jurisprudence is planned, largely related to the fact that the acquisition by the emperors of the legislative power ceased to the laws of lawyers. Since Diocletian, emperors, having received unlimited legislative power, ceased to give to lawyers Ius Respondendi. True, the provisions of the classical period lawyers retained their authority and in new conditions.
From a large number of famous lawyers of the classical period, the most outstanding were Guy (II century), Papinian (II-III), Pavel (II-III century), Ulpian (II-WP) and Modestin (II-III centuries). The Special Law of Valentinian III (426) on the citation of lawyers the provisions of these five lawyers was given a legitimate force. With disgraces between their opinions, the dispute was solved by a majority, and if it was impossible, then preference was given to the opinion of Papinian. The mentioned law recognized the importance of the provisions and other lawyers who were quoted in the writings of the named five lawyers. Such quoted lawyers were primarily the Sabin, Stems, Julian and Marcell.
The compositions of Roman lawyers became an important part of the codification of Justinian (Corpus Iuris Civilis), which included: 1) institutions, i.e., the coverage of the fundamentals of Roman law for primary learning (for this part, "Institutions" Gaya, as well as the work of Ulpian, Florentina and Marciana); 2) Digests (or Pandeks), i.e., the collection of excerpts from the writings of 38 Roman lawyers (from the i century BC. E. - according to IV century. N. E.), And the extraction of five famous lawyers from work is more than 70 % of the total text Digest; 3) Code of Justinian (meeting of the imperial constitutions). He led all this large codification work, including the preparation of Digest, an outstanding lawyer VI in. Tribonian. It should be borne in mind that, first of all, it was the collection of texts of Roman lawyers that provided the codification of Justinian an outstanding place in the history of law.
The activities of Roman lawyers were mostly aimed at meeting the needs of legal practice and the adaptation of the existing rules of law to the changing needs of legal communication. At the same time, in their comments and responses for specific cases, as well as in the compositions of the study profile (institutions, etc.), they developed a number of general relevant provisions. True, the formulation of the general structures and definitions of Roman lawyers approached very carefully, preferring the detailed and filigree development of specific legal issues and only on this basis, making certain generalizations. From here, the famous saying "every definition is dangerous", ascending to the status of a lawyer I-II centuries. Envasted: "In a civil law, every definition is fraught with a danger, for there are few cases when it cannot be overturned."
Such caution in the wording of general provisions (Rules, Regulae) was also dictated by the fact that such generalizations of lawyers (rules) acquired the importance of the general properties (legal norms, rules and principles). Characteristic in. This connection is the position of Paul: "The rule is a brief expression that there is; not the rule is eligible, but from the existing right is the rule."
Roman lawyers are ascebated by dividing the right to private and public. Ulpian in his own classic, dividing the entire right to public (the right, which "refers to the Regulation of the Roman state") and private (right, which "refers to the benefits of individuals") noted that, in turn, "Private Law is divided For three parts, for it is made up of natural prescriptions, from (prescriptions) of peoples, or (prescriptions) of Civile. " These "parts" are not isolated and autonomous sections of rights, but rather interacting and intercogilizing components and properties that are theoretically allocated in the structure of the actual right in general.
The interpenetration of the various components ("parts") of the right, the impossibility of their "pure" allocation from the right as a whole and a sharp separate was emphasized and Ulpian himself. "Civile law," he noted, - it is not separated entirely from the natural law or the right of peoples. So, if we add something to general law or reduce from it, we create our own right, that is, a civilian. So, our The right is either written or unwritten, like the Greeks; from the laws of alone are written, others are not written. "
The requirements and properties of natural law are permeated not only the civil law, but also the right of peoples (Ius Gentium), which meant the right, in general in all nations, as well as partly and the right to international communication. "The right of peoples," said Ulpian, is that the peoples of mankind enjoy; it is easy to understand its difference from natural law: the latter is common to all living things, and the first is only for people in their relations among themselves. "
This is the case and according to the views of the Gaya lawyer. "All nations, managed by laws and customs," he wrote, "enjoy part of their own, part of the right, common people." Moreover, this is the common right, called the right of peoples, at its base and is essentially a natural right - "right that the natural mind set between all people."
The idea of \u200b\u200bthe relationship and unity of various composite moments and properties inherent in law in general; Theoretically accurate and clearer than Ulpian and Guy, Pavel's lawyer expressed. "The word" right, "- he explained, - is used in several senses: first," right "means that it is always fair and kind, what is the natural right. In another sense," right "is that it is useful to all or many in any state, what is a civil law. No less correctly in our state "right" is called Ius Honorarium (Pretorous Law). "
It is important to keep in mind that all these various "meanings" are at the same time present in the general concept of "right" (IUS), the inclusion of the Roman lawyers of natural law into the cumulative scope of the right of law in general, with all the consequences arising from here, corresponded to their initial ideas about the right as a fair phenomenon. "Having studied right, - Ulpian emphasizes, - first of all know where the word IUS comes from (right); it got its name from Iustitia (true, justice), for how perfectly defines Celsis, the right is ARS (art practically realizable knowledge and the ability) boni (good) and aequi (equality and justice). "
The concept of Aequi (and Aequitas) plays a significant role in the right-way of Roman lawyers and are used, in particular, to oppose Aequum Ius (equal and equitable law) IUS INIQUUM (right that does not meet equity equity). Aequitas, being a concretization and expression of natural legal justice, served as a scale to adjust and evaluate the law, a guideline in laws (lawyers, Pretor, Senate, and other subjects of law-conducting), maxima with interpretation and application of law.
"Iustitia (True, justice)," said Ulpian, "there is a constant and continuous will rendet each of its right." From such a general understanding of the legal justice of Ulpian, the following, more detailed "prescriptions of the right": "To live honestly, do not harm the harm to another, to provide everyone that he belongs." In accordance with this, he determined the jurisprudence as "the knowledge of Divine and Human Affairs, knowledge of fair and unfair."
In general, for the ruthlessness of the ancient Roman lawyers, a constant desire to emphasize not only axiological (value) features of law, but also inherent in the concept of the quality of the quality of the need and must be. And both of these aspects are closely related to a certain unity of equitable law.
Equally, in this regard, in particular, the following position of Paul: "It is said that the Pretor expresses the right, even if he decides unfairly: this (the word) applies not to the fact that the pretext did, but to what he should do."
These requirements, according to the views of the ancient Roman lawyers, apply to all sources of law, in. including the law (Lex). So, Papinian gives the following definition of the law: "The law is a prescription, the decision of wise husbands, the curve of crimes committed intentionally or by ignorant, the general vow of the state." On a more abstract language of subsequent time, it can be said that in the given definition of the law, thereof, in particular, such features, as its general-perfimity, rationality, sociality (anticrimination), national character (and in the sense of the law of state protection, and in terms of compliance duty The law and its holiness for the state itself). The same characteristics of the law are contained by Martzian, solidized with the following definition of the Greek speaker Demosphen: "The law is what all people should obey for different foundations, but mainly because every law is the thought of the invention and the gift of God, the solution of wise People and curb crimes committed both by the will and besides the will, the general agreement of the community in which they should live in it. "
The justice of law is meant where Roman lawyers are engaged in legal and technical analysis of the law and other sources of law. So, for example, when a lawyer Modestin writes that "Action (force) of the right: to command, prohibit, punish" *, then it is assumed that such formalization and classification of legal imperativeness make sense (and strength) only inspired because it is about imperatives (velats) is the right, that is, fair law. This principal circumstance, the Roman lawyers themselves clearly emphasized. So, Paul wrote: "What perceived contrary to the beginning of the right cannot be disseminated on the consequences." In other words, what contradicts the principles (revenues) of law is not legal.
The same thought also developed Julian: "What is established contrary to the meaning of law, we cannot follow as a legal rule." These ideas receive their further concretization in the details of the Roman lawyers and receptions of the interpretation of the rules of law designed to ensure an adequate establishment of the meaning of an interpreted source.
In the field of public law, Roman lawyers developed the legal status of shrines and priests, the powers of state bodies and officials, the concept of power (imperium), citizenship and a number of other institutions of state and administrative law.
When moving from the republic to the monarchy, Roman lawyers put a lot of efforts for the legal design of the Caesarism regime and the rationale for the claims of emperors to the legislative power.
Many of the lawyers were trusted advisers under the emperors and occupied high positions in the state. Some of them, however, themselves became a victim of the arbitrariness of the authorities. So, Ulpian, as the prefect of Pretoria, trying to fight with the arbitrariness and promotion of Pretorians, after a number of attemps was in 228 killed by them in the presence of Emperor Alexander North. Somewhat earlier, in 212, the Karacalla was executed by Papinian, also the former prefect of Pretoria. Karakalla, killing his brother Htu, demanded from the famous lawyer to justify his actions. Papinian abandoned it, saying: "The excuse of murder is not easier than his commit."
Roman lawyers focused on the development of private law problems, and above all civil law. Lawyer Guy interpreted the civil law as the right, established (written or orally) in a given people (for example, in the Romans, Greeks, etc.). This interpretation is complemented by Papinian with an indication of sources of civil law - laws, plebiscites, senotascons, and pripence decrees, the provisions of lawyers' scientists. As a source of "Supplement and Correction of Civile Law", it is characterized by Pretorous Law. In the same spirit, Martzian called the prestorm law "living voice of civil law."
In the field of civil law, Roman lawyers thoroughly developed property issues, families, wills, treaties, legal status of personality, etc. Their coverage of property relations differs from the position of the protection of the interests of the private owner.
The property, along with animals and other things, are, according to the Roman law and the teachings of lawyers, also slaves.
"The most important distinction in the legal status of persons," wrote Guy, is that people - or free, or slaves. Also from the free alone - freely born, others - scickers. " The same division gives Ulpian, adding that it arose by the right of peoples, since "on natural 64
the right is all born free. "
The right of peoples, as Roman lawyers understood him, included both the rules of interstate relations and the norms of property and other contractual relations of Roman citizens with nonnimals (overhears).
About the circle of questions that have fallen under the right of peoples, Hermogenian wrote: "This right of peoples introduced war, the separation of peoples, the foundation of kingdoms, the division of the property, the establishment of borders, fields, building buildings, trade, purchase and sale, hires, obligations, except those that were introduced by civil law. "
The right of peoples contained a number of international legal norms (the term "international law" in the Romans is absent). According to the right of nations, the sea is "common to all".
The work of Roman lawyers had a great influence on the subsequent development of legal thought. This is due to both the high legal culture of Roman jurisprudence (the circumstance and the argument of the analysis, the clarity of the wording, the extensity of the developed problems of the general theoretical, industry and legal and technical profile, etc.) and the role that fell to the share of Roman law (its reception process etc.) in the further history of law.
13. Roman Stoiki.
Stoicism is a philosophical school that arose in the times of early Hellenism and preserved effects up to the end of the ancient world. The school received his name by the name of the portica of Staa Poikil (Greek. Στοά ποικίλη, letters. "Painted Portico"), where the founder of Stoicism, Zenon Kythius, for the first time he independently acted as a teacher. Before that stoics in Athens called the poets community that were collected in Staa Poikille a hundred years before the appearance of Zenon and his students and like-minded people. In the history of stoicism, three main periods are distinguished: the ancient (eldest) standing (end of the IV century BC. E. - middle of the II century BC. E.), Average (II-I century BC. Er), new (I- III century n. E.).
The main representatives of the Roman stoicism were Lucius Anne Seneca (3-65), epichet (approx. 50 - approx. 140) and Mark Azeri Antonin (121-180).
Seneca was a senator, an educator of the emperor Nero and the leading statesman, whose political intrigues brought ultimately to the forced suicide on the orders of his cruel and vengeful student.
More consistently than other stoics, Seneca defended the idea of \u200b\u200bspiritual freedom of all people, regardless of their public situation. All people are equal in the sense that they are "companions for slavery," because the fate is equally in power.
In the natural legal concept of the Seneki, inevitable and divine in their nature "Law of Fate" plays the role of the right of nature, to whom all human establishments are subordinated, including the state and laws.
The universe, according to Seneke, is a natural state with its natural right, whose recognition is the case necessary and reasonable. Members of this state under the law of nature are all people, they recognize it or not. As for individual state formations, they are random and meaningless for the whole human race, but only for a limited number of people. "We wrote Seneca," should present in the imagination of two states: one thing - which includes gods and people; in it, our eyes are not limited to this or that corner of the earth, we measure the boundaries of our state; another is something, To whom we have attributed an accident. This second can be an Athenian or Carthaginsky or is connected with any city; it concerns not all people, but only one specific group of them. There are people who are at the same time serve and large and The Small State, there are those that serve only large, and, such that serve only to small.
Ethically the most valuable and unconditional, according to the cosmopolitan concept of Seneki, is a "large state". Rationality and, consequently, an understanding of the "law of fate" (natural law, divine spirit) is true that, counteracting the case (including random affiliation to one or another "small state"), to recognize the need for world laws and Guided by them. This ethical Maxim is equally significant both for individuals and for their communities (states).
Similar ideas developed other Roman Stoiki: the epicate is the slave, then released on the will, and the emperor (in 161-180) Mark Azeri Antonin.