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15. Ontological doctrine of law The rationale for the updated concept of ontology of law is contained in the works of the famous Austrian lawyer Rene Marcic “Natural Law as the Basic Norm of the Constitution” (1963), “Philosophy of Law” (1969); etc. Explaining the meaning of his approach, he

Machiavelli's ideas received their logical development in the works of the French thinker, politician, lawyer and historian Jean Bodin (1530-1596).

Jean Bodin was born into the family of a master tailor in the city of Angers. He received his initial upbringing and education in the monastery. Then he studied law at the Academy of Toulouse. In 1561, he went to Paris, where he became close to the “Politics” group, which defended religious tolerance and strong royal power.

In May 1587, Bodin inherited the post of Prosecutor General of Lyon from his father-in-law. And after some time, the tailor’s son became the mayor of Lyon, and he held this post for two terms in a row.

Fame came to Jean Bodin in 1566 after the publication of “The Method of Easy Comprehension of History.” In the “Method”, the philosopher not only reflects on the history of the development of mankind, but also formulates the first version of his doctrine of the state and state power, then developed 10 years later in “Six Books on the Republic” - Boden’s main work.

The new thing that J. Bodin did in political theory was to establish a connection between the concepts of “state” and “sovereignty”. In other words, a theory of state sovereignty was created, at the center of which is the idea of ​​an indivisible, united, permanent state power, standing above the law.

In Bodin’s teaching, the state is separated from the personality of the ruler; it is a completely independent social institution, which is opposed to both individual citizens and their amateur associations. Therefore, J. Bodin studies the state also in relation to external entities, i.e. other states, interstate unions, etc. It indicates that the state has various rights and obligations, for example, the powers of the owner of property. Boden also writes about treaties between states, which must be strictly observed by all sovereigns, about special international military law. All this allows us to consider him the founder of the science of public, state law as a special branch of jurisprudence.

The doctrine of state sovereignty, now firmly associated with the name of Bodin, begins its development, of course, long before him, mainly in the form of the ruler’s full power in the legislative sphere. However, firstly, these theories were limited, and secondly, they spoke about the sovereignty not of the state, but of the sovereign, i.e. ruler. Bodin, who saw the emergence of a new type of state, overcame this tradition, transforming sovereignty from a set of powers of the owner, master over the state (population, resources, etc.), into the very essence of statehood, state will. This is his main merit as a state theorist.

“Sovereignty is the most supreme, absolute and eternal power over citizens and subjects in the state,” - this is how Bodin defined this most important property of statehood. Such power is a necessary element of the state, manifested through its ruler - the sovereign, connecting him with individual citizens - members of the state. Moreover, the state itself is, first of all, a special order of governing the people and society. Sovereignty is the unifying force that forms the state as a social institution. Power connects the individual and the state through the ruler, who is in this case an intermediary and exponent of the essence of the state, its will.

Sovereign, i.e. the expresser of sovereignty, the plenipotentiary representative of the state, can only be the one to whom this power belongs permanently and continuously; it must be absolute, which means unconditional and not limited by any other person or body. Initially, only the people of the country can be the bearer of power, who then independently dispose of this power, assigning the responsibility of management to another person or persons at their own discretion. Bodin writes about this as follows: “If such absolute power has been transferred to the ruler completely and completely, not in the name of a magistrate ... or other elected body, this means that such a person can be called a sovereign ruler” and the entire population of the country must then obey its authority, because in this case there was a voluntary transfer of sovereignty.

It should be noted that since state sovereignty in Boden’s theory connects not citizens within the state with each other, but the state as a system and a super-subject with citizens - its elements, since sovereign rights are the property of the state, they cannot belong not only to the sole ruler, but and any other number of rulers, even if their number is close to or equal to the population of the country, otherwise than on the basis of transfer of trust. Therefore, strictly speaking, the idea of ​​popular sovereignty is as far from state sovereignty as the doctrine of full power by virtue of the monarch-sovereign’s own right. No one can be the owner of sovereignty, i.e. State power, except the state itself, is neither a single person nor the entire people. Any ruler is only the ruler of a state to whom this power is granted in the same way as it is vested in the organs of a legal entity, which by their actions actually implement not their own will, but the will of this person.

Sovereignty, according to Boden, is absolute and permanent power, not bound by any restrictions or laws. There are five distinctive features of sovereignty: issuing laws, deciding issues of war and peace, appointing officials, acting as a higher court, and pardoning.

At the same time, the sovereign power must comply with a number of conditions: observe divine and natural laws, not interfere in family affairs, observe the principle of religious tolerance, and not collect taxes without the consent of the subjects.

In general, J. Bodin’s entire theory of sovereignty was directed against feudal separatism and to justify absolutism. Hence, for Boden, the best form of government is a monarchy. According to Boden, where one rules, there is order. It is in the monarchy that competence (I advise! Many) and energy of power are ensured (one decides).

However, Boden noted that sovereignty is unlimited only in the sphere of activity of state power. It does not extend to the area of ​​relations determined by divine and natural laws and private property. J. Bodin transfers private property, family relationships, as well as some personal rights into the sphere of divine and natural law, before them the unlimited power of the sovereign freezes.

According to the method of exercising power, Boden divided all states into three types:

• 1) legal (subjects obey the laws of the sovereign, and the sovereign obeys the laws of nature);
• 2) seigneurial (the sovereign, by force of arms, becomes the owner of property and people and rules them as the father of the family);
• 3) tyrannical (the sovereign, having violated the laws, disposes of people as slaves, and their property as his own).

The best state is one where sovereignty belongs to the monarch and governance is aristocratic and democratic in nature. He calls such a state a royal monarchy.

Based on the concept of sovereignty, Boden distinguished between two types of state units. To unions based on inequality, he included formations that include parts that are in vassal or other dependence on the sovereign, as well as a federation, since in it only the union as a whole, and not its individual parts, has sovereignty. The second type of union of states - a confederation - is based on equality, when each member retains sovereignty.

Boden emphasized the conditionality of the state and legal institutions of various countries by climate and geographic environment, exaggerating the importance of the geographical factor and deducing from it both the biological and psychological foundations of behavior and many social forms of life of peoples.

Boden's merits in the development of political and legal thought are indisputable. Proving the need for state sovereignty, he simultaneously outlined the limits of state power and expressed the idea of ​​an “enlightened” monarchy.

“Just as a ship, if it does not have a keel, bow, stern and upper deck, is just a pile of wood that does not have the shape of a ship, so is a state deprived of sovereign power that unites all citizens and all parts of it, all economies and all boards into a single whole is no longer a state,” wrote Jean Bodin. The concept of sovereignty, formulated by Bodin in his famous work Six Books of the Republic (1576), became the basis of the theory of the modern state. Power, sovereignty for the thinker is not just an attribute of the sovereign, but the very substance, the very definition of the state. And if Machiavelli’s political theory develops primarily in terms of fact, then Boden’s concept takes us to the level of legitimacy and represents a theoretical system of categories and concepts concentrated around the concept of sovereignty. This system, from Hobbes to Rousseau, from Locke to Montesquieu, will continue to develop and improve.

Bodin defines a state (republic) as the direct administration of a multitude of households and everything they have in common, through sovereign power. This definition means the following: -

firstly, the state exists only where and when sovereignty acts as its principle. For example, a group of robbers led by a leader is not a state. A state, or republic, exists only where and when legal order (i.e. the right to govern) exists;

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secondly, the sovereignty of power acts as a definition of a state or republic. The concept of sovereignty is a principle of the state that sets the form and structure of its policies. In other words, sovereignty is not just a characteristic of the power of the sovereign, but the very basis of the state.

Thus, for the existence of a state in which one law applies equally to all, it is necessary that this political form, characterized by the division between ruler and ruled, should be established, preserved and maintained. State, i.e. a form of sovereignty is a political system of subordinating many subjects to the unity of a principle - the personality of the sovereign.

What is sovereignty according to Boden? This is “the ability to command and compel in such a way that the one who commands and compels is not the object of command and compulsion on the part of anyone else.” Sovereignty is the basis of state integrity, it binds all parts of the state, “all households, corporations or colleges” into a single whole, giving a special form of state to all political and social elements (Six Books on the Republic, I). Boden identifies the following main features of state sovereignty: -

sovereignty is permanent, i.e. it exists in all forms of government without exception, successive to each other, and independently of them;

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sovereignty is absolute, for the sovereign is not subject to anyone, he is free from all commands, except those that come directly from himself;

The classification of forms of government is also closely related to Bodin’s definition of sovereignty and its essence. Since sovereignty is indivisible, all mixed forms of government are absurd.

Like a household in which the husband and wife alternately command, mixed forms of government are short-lived. Any division of sovereignty leads to conflicts, struggles, in which sooner or later the strongest will win and seize sovereignty. The thinker also rejects the Aristotelian idea of ​​“spoiled” forms of government: in classification, we should talk about the essence, and not about the quality of the regime, which does not change the nature of things. The degree of purity or corruption of a regime is not a sufficient basis for giving it a new name. Bodin believes that he was the first to reveal the fundamental rule that is the secret of all politics: he believed that there is a difference between the state and government, between the form of the state determined by the number of people in whose hands sovereignty is concentrated, and the manner in which sovereignty is exercised in each of them. these forms. Thus, if there are only three forms of government, determined by who has the right to legislate and make decisions (monarchy, aristocracy, democracy), if, further, the fourth, mixed form of government is excluded, then the situation is completely different with the method of exercising sovereignty: here, on the contrary, it is not only possible, but also preferable, to mix different methods or types of power, designed to moderate power and limit sovereignty. And now Boden unfolds before us a detailed picture of possible combinations and combinations of forms of government and methods of exercising power. So, for example, a people's state can be with popular government (an egalitarian regime in which all citizens take an equal part in both government and the distribution of goods), with aristocratic government (actually ruled by a small number of citizens, for example the Roman Republic and its Senate) and with royal rule (a principle based on the majority of the people under the actual rule of one person - Caesarian democracy). Likewise, both aristocracy and monarchy can have popular, aristocratic, or monarchical rule.

Which of all these various forms seems to Bodin to be the best? Without a doubt, this is the hereditary royal monarchy, which alone is capable of creating a solid foundation for the exercise of sovereignty, and this, in turn, is able to find a true fulcrum in only one ruler. Monarchy is the most natural and best suits the goals and objectives of the state. Of course, the monarchy is also imperfect, and it has various kinds of shortcomings, the most serious of which is the excessive personal influence of one person, which, moreover, is not used for the good of the state, but to satisfy selfish interests. But be that as it may, the negative aspects of the monarchy are incommensurate with the evil that aristocracy and democracy carry within themselves. The royal monarchy represents a harmonious government in which the king cares equally for all his subjects - nobility and peasants, poor and rich.

Jean Bodin considered himself a new Aristotle, the creator of Politics, deepened, developed and corrected in accordance with the requirements of his time. The new political science, in his opinion, free at the same time from Machiavellian radical empiricism and More's idealistic utopianism, should follow divine law and natural law, rely widely on historical facts and give a complete and integral picture of all political and legal knowledge. Perhaps the excess of the thinker’s claims can cause a smile, but his Six Books on the Republic - a sea of ​​facts, ideas, quotes, comments - remain the political and legal Summa of his century, a kind of political compendium of an entire era.

Jean Bodin's theory of state sovereignty - the cornerstone of classical state law - is also the foundation of classical theories of international relations, since it substantiates the essence of the political behavior of the state as a subject of international relations.

A professor of jurisprudence at the University of Touloues, a Parisian lawyer, and then a royal prosecutor in Lyon, Jean Bodin outlined his theory in “Six Books on the Republic” (1576), understanding the term “republic” as the state in general. J. Bodin's approach to understanding the phenomenon of the state is, of course, inspired by the historical context. France, torn apart in the 16th century. civil and religious wars between Catholics and Huguenots, devastated by the robberies of soldiers' bands and raids by nobles, it experienced complete devastation. Dukes, princes and high nobles behaved like sovereigns, regardless of Paris. The Pope and foreign rulers pulled the country in their direction. The salvation of France, even at the cost of cruel rule, could only be the strengthening of royal power to the point of absolutism.

Jean Bodin came to the conclusion about the need for supreme national power, embodied in state sovereignty. Jean Bodin established that “sovereignty is the permanent and absolute power of the state.” He first formulated the doctrine of sovereignty as the essence and sign of state power, which meant that the absence of sovereignty excludes the existence of a state. J. Bodin also pointed out two indispensable signs of sovereignty: the constancy of state power, not limited in time, and its absolute nature, not restrained by any conditions.

The content of these principles, of course, was of a transitory nature, determined by the era. Nevertheless, J. Bodin’s position on the unlimitedness of sovereignty in time formed the basis of the modern interpretation by international law of the principle of state continuity during changes of governments and political regimes. The position of absolutism was legally expressed in the principle of the supremacy of state power, over which there is no other power within the state and outside its borders. J. Bodin specified that “all sovereigns on earth are subject to the laws of God and nature and many human laws common to all peoples.” Political sovereignty power is boden

Although such a reservation indicated that J. Bodin was considering the inevitable question of the relationship between absolutism and international law, he considered it in favor of a sovereign state with the absence of separation of powers and preferably a monarchical form of government. Some French lawyers express a different opinion. “In general, for Bodin, sovereignty was the basic principle of internal law, intended to bring order to the political community. It in no way meant that the state was placed above any law,” writes, for example, the French international lawyer D. Kappa.

Jean Bodin expounded a theology-free, secular doctrine of state power, substantiated the demand for political centralization of the country, and was a supporter of an absolute monarchy. In those days, royal absolutism was a progressive phenomenon for the state (in particular, J. Bodin’s native France).

According to Bodin, the state is the rightful management of many households and their common property by the supreme power.

Boden is an opponent of the theory of a mixed form of state. He distinguishes three forms of state: democracy, aristocracy and monarchy (depending on the ownership of power by one or another sovereign).

Boden evaluates democracy negatively, because “the people are a many-headed beast and devoid of reason, they hardly do anything good. Trusting them to decide political affairs is like asking advice from a madman.” The disadvantage of the aristocracy is instability, which is due to the collegial method of decision-making. The common defect of democracy and aristocracy is that "in a democratic or aristocratic state the votes are counted, but not weighed in the scales of virtue."

The best form of state to overcome the political and religious crisis is a monarchy, since it directly corresponds to the nature of sovereign power, its unity and indivisibility. Bodin is a supporter of a hereditary rather than an elective monarchy, because an elective monarchy presupposes an interregnum, and the state at this time is “like a ship without a captain, rushing about on the waves of rebellion, and often sinking.”

For absolute power there must be three limitations: the sovereign in his activities is bound by the laws of God, the laws of nature and the laws of man, common to all nations. Types of laws: laws established by God; laws established by nature; laws made by sovereign power; laws established by nations; laws established by the general agreement in which sovereign power originates.

The religious wars in France led to the disintegration of the country into warring camps. On the one hand there are Catholics, on the other - Protestants. Civil strife interfered with the normal life of society. He criticized this situation and justified absolutism in the 16th century. Jean Bodin (1530-1596), lawyer by training.

Jean Bodin was born the seventh child in a large family in the city of Angers. He grew up and acquired knowledge in a monastery, studied metaphysics, which at that time was the “queen of medieval knowledge,” but this formed a negative attitude towards Boden. He completed his education at the universities of Paris, Angers, and Toulouse. Education for such people is the only way to power, to gain the opportunity to participate in the fate of the fatherland.

When Jean studied in Paris, he developed a negative attitude towards the Catholic Church after studying the treatises of German Protestants, French Huguenots, and Calvin. For Boden, the authority of the Old Testament is higher than that of the New Testament. A period has come when he refuses the laws of life as a monk, justifying his action by saying that he was “tonsured” when he was unaware of anything and was incapacitated.

Right Jean studied at the University of Toulouse, which belonged to the best educational institutions in France, where four thousand students studied. All of them were the support of the king of France. After graduating from the University of Toulouse, he taught Roman law.

Jean Bodin becomes a great lawyer of the French Renaissance, and his love for his homeland leads him on the path of serving the king. In France, internecine religious wars were fought for more than 30 years. Bloodshed, especially on St. Bartholomew's Night, and the massacre of the Huguenots by Catholics in 1572 led the country to decline. Therefore, the most loyal and patriotic forces began to unite around the King of France, in addition, they were also tired of religious wars. Jean Bodin miraculously survived during St. Bartholomew's Night, escaping through the window of his house. Events in France in the 16th century, which was torn apart by religious, political, economic and legal contradictions, and thousands of killed people, aroused in Boden a great desire for peace, tranquility, and harmony in society. He dreamed of a fair state where there would be legal guarantees of freedom and personal development. A person must be calm for herself, for her future, for her family, her personal rights must be protected.

Boden's authority as a lawyer was enormous. When he worked as a prosecutor in Normandy, he conducted about 400 cases, even against the nobility and members of the high nobility. In 1571, Jean Bodin led a party of politicians who believed that the main task of the state was to establish order, law and peace, and not the dominance of one faith or another. The fact that he spoke out against religion in such a way caused misunderstanding and even suspicion among many at court. The more Bodin became popular in France, the more he lost the king's support. He was forced to retreat from politics. He moved to the city of Lan, married a widow, and after the death of her brother, inherited the position of royal prosecutor. Jean Bodin died of the plague during an epidemic. Thus ended the life of the great lawyer during times of unrest in France and Europe.

Jean Bodin wrote the essay “Six Books on the State” in 1576. The book was published in Latin for all of Europe in 1584. The main political and legal ideas of this work are as follows: 1. J. Bodin opposed feudal decentralization. 2. Called for an end to religious fanaticism. 3. The most basic and main idea was that Zhe. Boden was the first in the history of political and legal thought to formulate and substantiate the concept of sovereignty as an essential feature of the state. Sovereignty is the absolute and permanent power of the state... Absolute power over citizens and subjects not bound by any laws.

The power of the state is constant and absolute. This is the highest and independent power both within the country and in relations with foreign countries. Above the bearer of sovereign power are only God and the laws of nature. Sovereignty Same. Boden understood this as the independence of the state from the Pope, from the church, from another state.

Sovereignty as the supreme power gives the rights: 1. To make and repeal laws. 2. Declare war and make peace. 3. Appoint senior officials. 4. Exercise supreme court. 5. Have mercy. 6. Mint a coin. 7. Establish standards of measure and weight. 8. Collect taxes.

Boden defined the state as the legal administration of many families and what they have in common, on the basis of sovereign power. The state is a legal administration in accordance with justice and the laws of nature. In law, it differs from a gang of robbers or pirates, with whom alliances cannot be concluded. The state is a collection of families, not individuals. The family is the basis and focus of the state. In the Zhe family. Boden distinguishes three types of power relations: 1. Marital. 2. Parental. 3. Barskie.

Slavery Same. Boden did not recognize and was against its existence. He also opposed various forms of government, both right and wrong, and even mixed ones. We must proceed from the fact, Bodin taught, who owns sovereignty, real power: to one, to a few, to the majority.

Towards democracy. Bodin had a negative attitude, because in a democracy there are many laws, and the common cause is hereditary. The best form of state is a monarchy. The monarch, like God, rules over his subjects without interference. Power is transferred to the heir, and it exists for a thousand years. Many people advise, but only one decides.

Jean Bodin defended private property because it is related to the laws of nature. Natural law prohibits taking what belongs to others, and equality of property is ruin for the state.

According to the method of exercising power. Boden divides all states into three types: 1. Legal. 2. Patrimonial. 3. Tyrannical. In law, subjects obey the laws, and the leader himself obeys only the laws of nature. In patrimonial lands, the leader seized people's property by force and weapons and rules as a father in the family. In tyrannical ones, the leader despises natural laws, disposes of free people as slaves, and their property as his own.

In our time, the teachings of Jean Bodin are quite relevant. Firstly: Sovereignty is inherent only in the state, as an integral quality of the supreme power in the country. Secondly: Sovereignty is unlimited, it either exists or it doesn’t, it cannot be limited. Third: Sovereignty is indivisible.