The idea of nation, social trihotomia, and development of legal pluralistic outlook

Kresin Oleksiy. The idea of nation, social trihotomia, and development of legal pluralistic outlook

The article is devoted to the socialization of the idea of law in the works of European thinkers XVII–XVIII century. Fundamental importance for the development of jurisprudence is the question of the objectivity of law. For the first half of the XVII century in terms of the Counter-Reformation and the Thirty Years War Europe was characterized by a understanding of positive law as subjective or intersubjective – arbitrary, based on individual expression, and as objective acted primarily divine, natural law. This intersubjective foundations of law mainly considered universal, general, such arising from natural law.

According to the author, Counterreformation ideology and rationalist philosophy led to the modification and strengthening of weakened by Reformation dichotomy of General and Particular in law that instrumentalized and practically decreased the concept of legal order of society and the state.

Out of this impasse was found in the idea of the nation that gave to social law organic, historicity features and comprehensive nature. Detailed attention is paid to the analysis of Montesquieu works and their impact on the development of legal thought. Also examined are the ideas of G. V. Leibniz, G. Konring, G. Vico, J. Heumann von Teutschbrunn, S. Desnytskyi, G. Poletyka, J. Kozelsky, I. S. Putter, J.-J. Rousseau and others.
Argued that the idea of nation had been directly related to the transformation of European social and legal philosophy, in which the basic unit (Particular) instead a subjective right of person became objective and largely positive national law, Special – fundamental features of legal development within regions or groups of nations, General – universal principles of law, formulated in theological and philosophical foundations.

Thus, the European political and legal thought of XVII–XVIII centuries looked for a new social subject that had to give legitimacy and organic character for state and law, explain their non-randomness and provide them with stable prospects of development. This became the idea of a nation that had historical, organic while socio-willed character, was able to justify the internal indivisibility of states and strengthen their external sovereignty.

The key elements of the concept of the nation became its self-development, collective rationality and will.  The concept of the nation in its essence has become even more socially total than the idea of society developed by humanists and Protestant theologians of XVI century, almost «captured» in itself the individual will through the idea of general social consciousness/national spirit, certainly provided and covered national state and law, to some extent even nationalized the religion and ethics.

It had been shaped space of equal coexistence and horizontal interaction of national legal orders, and also developing a separate identity of socio-legal studies and the formation of a pluralistic legal philosophy. The institutional structure and the law of state simultaneously received new legitimacy and were subordinated to the idea of national legal order as the embodiment of national spirit.

Objective law restored its relationship with subjective right and was subordinated to the latter. Being internally total, the concept of national law was externally pluralistic sharing world to formally equal in their individuality and mainly localized within the bounds of states national legal orders.

Key words: social sciences, the idea of nation, national law, rationalism, positive law, natural law, socialization of legal thought.

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