Theory of solidarism and social functions. The theory of solidarism in law and theological theory of law

The ideas of solidarism became widespread in the late XIX - early XX centuries Their theoretical basis was a sociological doctrine, Auguste Comte's view of society as a single whole. The concept of “solidarity,” put forward by the founder of sociology, Auguste Comte, was developed in the book of the French sociologist Emile Durkheim “On the Division of Social Labor” (1893).

The same ideas were developed in the book of the French politician L. Bourgeois “Solidarity” (1897). The professor attempted to build a political and legal concept based on the ideas of solidarity Faculty of Law in Bordeaux, Leon Duguit (1859–1928) in the book “The State, objective law and positive law" (1901).

The political and legal doctrine of solidarism is characterized by the following points:

· ideological opposition to both individualism and socialism (communism);

· a sharply negative attitude towards the doctrine of class struggle (Leon Duguit called it a “disgusting doctrine”);

· a skeptical attitude towards subjective rights, since, according to solidarists, they divide members of society. “The individual has no right, he only has social responsibilities" Duguis proposed replacing the concept of subjective right with the concept of social function;

· a negative attitude towards the ideas of equality and natural human rights put forward in the revolutionary era and enshrined in the Declaration of the Rights of Man and Citizen. Duguis argued that people are unequal by nature, occupy accordingly different positions in society and should have different, rather than identical legal status;

· view of the bourgeoisie and the proletariat as interconnected classes, each of which performs social required function and who must work together and solidarily in social production;

· an approving attitude towards private property, which was considered not as a subjective right of the individual, but as his duty “to freely, fully and perfectly perform the social function of the owner”;

· understanding of social solidarity as “a fact of mutual dependence that connects members of the human race, due to common needs and division of labor”;

· the idea that awareness of the fact of solidarity generates a social norm that stands above the state and positive (written) laws, and they only serve its implementation.

Duguis formulated this norm as follows: “Do nothing that reduces solidarity through similarity and solidarity through the division of labor; to do everything within the material power of the individual to increase social solidarity in both of these forms”;

· emphasis on the positive responsibilities of the state. According to Dugi, laws on universal education, health care, social security, labor protection, etc. correspond to the norm of solidarity.

The theory of solidarism had a significant and lasting influence on political and legal ideology and practice. In Russia, Leon Duguit's ideas were supported (although not unconditionally) by such prominent jurists as Pavel Ivanovich Novgorodtsev and Maxim Maksimovich Kovalevsky. Dyugi’s ideas about the “social functions” of law were favorably referred to by A. G. Goikhbarg and other Soviet jurists in 1918–1920. Subsequently, Duguis's doctrine of the syndicalist (corporate) state was used by the Fascist Party of Italy, the Francoist and other anti-democratic regimes, which undermined confidence in the actually moderate ideas of solidarism, a number of which remain relevant to this day.

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Solidarism is a doctrine of society that affirms the solidarity of its different parts. Solidarism opposes totalitarian teachings of class or race struggle. At its center is the human personality: it can only be a goal, not a means. But, in contrast individualism And liberalism, solidarity emphasizes the fact that the individual does not exist on his own: a person owes his knowledge, his culture, his man-made environment to other people. Human "I" cannot be separated from "We". Consciousness of the general "We"- the basis of every community. The inevitable conflicts in it must be resolved not by the desire of one side to suppress the other, but by finding common values ​​for both sides and subordinating the clashing interests to these values. Solidarism is, first of all, a way of action: to look for in people what unites them, and not what separates them.

The origins of Russian solidarism go back to Khomyakov and the concept of conciliarity, rooted in Orthodox doctrine. Then this direction was developed Vladimir Soloviev and the authors of the collection "Milestones" , and, in its own way, Peter Kropotkin and some populists. The word solidarism was introduced into Russian political literature by a lawyer. G. K. Gins. He proposed in the 1920s a solidaristic system of law and a theory of the state as a service instrument, similar to a traffic light that regulates traffic.

In world thought, the herald of solidarity was still Menenius Agrippa in ancient Rome, who told a parable about parts of the body that should not be at enmity with each other. Term "solidarism" first time using Pierre Leroux in the 1840s in France (if you believe I. Voschinin, the term was nevertheless introduced by Charles Gide about half a century later - Note electron. ed.). There this doctrine was developed by a lawyer Leon Bourgeois, sociologist Emile Durkheim and others. The provisions of Western solidarism as a Christian teaching were developed by German thinkers, including Heinrich Pesch And Oswald Knell-Bräuning. Their idea "socially responsible market economy" formed the basis of many European political parties: French centrists , Austrian People's Party , Christian Democrats in Germany, Italy and Belgium. On the same basis of Christian social teaching, in its Catholic refraction, the Polish "Solidarity" .

In the title NTS words "Russian solidarists" entered in 1948. In the documents of the Union the concept "solidarism" appears since 1935. It was formed on the basis of Russian social and philosophical thought abroad, the works of such representatives as Berdyaev, Bilimovich, Vysheslavtsev, Georgievsky, Gins, I.A. Ilyin, Lossky, Levitsky, Sorokin, Timashev, Fedotov, Frank. Their influence expanded the ideological scope of solidarity. It included a developed Max Scheler philosophy of personality, personalism. Thanks to this, Russian solidarism considers issues of human freedom and creativity more deeply and comprehensively than Western ones.

All these ideas matured gradually. the founders of the Union were united by their love for Russia, faith in its future and a decisive rejection of everything on which the Lenin-Stalin dictatorship was based. In the early 1930s, they expressed their worldview in words "Idealism, nationalism, activism". "Idealism" subsequently led to an ideal-realistic worldview, to solidarism and personalism. "Nationalism" NTS (today they would probably say patriotism) has always been based on culture, not race; he was Russian, not Russian. "Activism" embodied the words of the Gospel: "Faith without works is dead"(Jacob 2:20).

• Solidarism: a view from the outside

Ludwig von Mises. Chapter "Solidarism" in chapter XVI "Pseudo-socialist systems" books "Social ism". Criticism of the economic side of mainly French solidarism from the standpoint of traditional liberalism.

Ivan Solonevich. Book "People's Monarchy". The author reduces solidarism to the doctrine of “functional property”, hence the negative assessment of solidarism as a future source of state bureaucracy and the unification of solidarists with communists and socialists into a group of “political counterfeiters”. In general, this is not much different from Mises, despite the opposing political and economic views.

Nikolay Ustryalov. From letters to G. Dikiy (has now been taken off the Internet). One of them gives the following characterization of the emerging Russian solidarism: “Really, why this multifaceted brand, worn out by all the bourgeois flea markets? Really, it is least of all suited to real revolutionaries - leave it to political smugglers, or petty eclectics, like the local Mr. Gins.” As they say, NO COMMENTS.

Mikhail Moshkin. "Solidarism: historical aspects of one unclaimed ideology" . Historical sketch and assessment of the doctrine from the point of view of one of the ideologists of modern Eurasianism. As can be seen from the text, it is based on the work of Voshchinin. Despite the unfounded accusation against NTS that it has become an “agent of a geopolitical enemy,” overall rating teachings - moderately positive: “Despite the fact that Russian solidarism has failed, this does not mean that its ideas should be written off in the archives. An unclaimed weapon that is of no use to one may be picked up by another.”

The theory of solidarism. Social conflicts inevitably occur in society. In order to exclude dangerous consequences conflicts, the state must use a number of tools. One of the main ones is law.

Law is one of the most effective ways to prevent and resolve conflicts. The law must establish the principles of a social state, i.e. a system of social assistance, pensions, benefits, limit unemployment, control price levels, etc.

Solidarist theory (Leon Duguit) - the doctrine according to which law arises before the state, arises with the first signs of public life. Law is the main constitutive element of society; it originates along with the first social unions and responds to the same request for solidarity of ever expanding groups.

The founder and most famous representative of the theory of solidarism in law was the French lawyer Dugis. As the main principles on which his teaching was based, Duguis put forward two:

· man is a being aware of his position;

· Man is a social being; he cannot live in isolation.

Society functions only thanks to the solidarity that binds individuals together. From this position, Duguis concluded that there is an invariable norm (principle) of solidarity: “act in solidarity.” No one should violate the norm of solidarity: do nothing that harms solidarity, but do only what promotes solidarity. It is the basis of law and order and state organization.

Law is not created by the state. Legal norms exist without the state, which only identifies norms that spontaneously develop in society on the basis of solidarity, and formulates them in the form of law. Legal norms are higher than the state, higher than the legislator. If the state issues rules that are contrary to solidarity, then they will not be observed and will not be included in the number of social norms. Law is not an instrument of state policy. It expresses not the will of any class, but the solidarity of different social groups.

Duguis opposed subjective rights, replacing them with a social function. The worker and the capitalist do not have subjective rights, they only have certain social functions that are designed to implement “holy solidarity” and ensure “happy harmony.” Private property is not the right of a capitalist, but a necessary social function, without which society is unthinkable.

Abstracts of the concept:

· Man is a social being. Society functions thanks to the solidarity (community of interests, support, mutual assistance) of individuals;

· class society should be transformed on the basis of class solidarity and professional groups. In this case, the elected parliament is replaced by corporate representation of trade unions and parties;

· law must be based on the norm of social solidarity. This highest and legal norm everything must match positive law;

· Denying the “individualism” of natural law, Duguis came to the denial of individual rights and freedoms. Freedom for him is only “freedom to fulfill one’s social duty,” since in the interests of social solidarity a person bears a social responsibility.

The political and legal doctrine of solidarism is characterized by the following points:

Ideological opposition to both individualism and socialism (communism);

A sharply negative attitude towards the doctrine of class struggle;

Skeptical attitude towards subjective rights, since, according to solidarists, they divide members of society;

Negative attitude towards the ideas of equality and natural human rights put forward in the revolutionary era and enshrined in the Declaration of the Rights of Man and Citizen. Duguis argued that people are unequal by nature, occupy accordingly different positions in society and should have different, and not the same, legal status;

A view of the bourgeoisie and the proletariat as interconnected classes, each of which performs a socially necessary function and which must work together and in solidarity in social production;

An approving attitude towards private property, which was considered not as a subjective right of the individual, but as his duty to “freely, fully and completely perform the social function of the owner”;

Understanding social solidarity as “a fact of mutual dependence that connects members of the human race, due to the commonality of needs and division of labor”;

The idea that awareness of the fact of solidarity generates a social norm that stands above the state and positive laws, and they only serve to implement it;

Emphasis on the positive responsibilities of the state. According to Dugi, laws on universal education, health care, social security, and labor protection correspond to the norm of solidarity.

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1. Conceptual systems of chemistry and their evolution. Early forms of the doctrine of elements are the theory of phlogiston, iatrochemistry, pneumochemistry and Lavoisier's oxygen theory.

Ministry of Education of the Republic of Belarus

Educational institution

“Grodno State University named after Yanka Kupala”

Faculty of Law

Specialty 1-240103 – economic law

ABSTRACT ON THE COURSE “HISTORY OF POLITICAL AND LEGAL TEACHINGS”:

THEORY OF SOLIDARISM

Completed by a 2nd year student

2 groups, day department

Zubrik Olga

Scientific director

Candidate of Legal Sciences,

Associate Professor Sedelnik V.V.

Grodno, 2009

INTRODUCTION

CHAPTER 1. P. LEROUX ABOUT LEGAL INSTITUTIONS

CHAPTER 2. THE THEORY OF QUASI-CONTRACT L. BOURGEOIS

CHAPTER 3. OBJECTIVE TEACHING ABOUT L. DYUGY’S LAW

CHAPTER 4. CRITICS OF THE OBJECTIVE TEACHING OF LAW

CHAPTER 5. SOCIAL LAW IN ENGLAND AND RUSSIA

CHAPTER 6. GINSA'S TEACHING ABOUT LAW

CONCLUSION

BIBLIOGRAPHICAL LIST

INTRODUCTION

The ideas of solidarism gained significant popularity at the end of the 19th and beginning of the 20th centuries. Solidarism – from the French solidaire – “acting together”. IN general outline, solidarism is “a system of coordinating the free aspirations of people and constantly overcoming inevitable social contradictions by subordinating opposing interests in the process of solidary cooperation.”

Solidarism is a socio-political concept that has become widespread in bourgeois social sciences with the transition of capitalist society to the stage of imperialism. The creators of this theory, like liberals, put the human individual and his personal rights, but, unlike the latter, they believed that a person cannot exist on his own, because, in the end, he owes his knowledge, culture, established life, and well-being to the efforts of other people.

Target research is an analysis of the theoretical positions and views of scientists regarding the theory of solidarism. This goal determined the setting next tasks :

1. Consider the doctrine of legal institutions by Pierre Leroux.

2. Reveal the essence of Bourgeois' theory of quasi-contract.

3 . Describe the objective doctrine of law by Leon Duguit and consider critical views on this theory.

4. Describe the doctrines of social law in Russia and England.

5. Reveal the essence of the doctrine of law by G. Gins.

An object research: political and legal views of such scientists as P. Leroux, L. Bougois, L. Duguis, T. Green, N. Korkunov, G. Gins on the theory of solidarism.

The subject of this work is are the works of the above-mentioned scientists: “The Course of Positive Politics” by Leroux, “Solidarity” by Bourgeois, “Treatise on constitutional law" Duguit, "From Liberalism to Solidarism" by Gins et al.

Brief information about the work structure: the work consists of an introduction, the main part: six chapters, a conclusion and a bibliography. The first chapter reveals the essence of Pierre Leroux's teaching on legal institutions. The second chapter characterizes Leon Bourgeois's theory of quasi-contract. The third chapter reflects the objective teaching of law by Leon Duguit. Chapter four presents critical views on the theory of objective teaching. The fifth chapter examines the teachings of some scientists about social law in England and Russia. The teachings of G. Gins on law are discussed in the sixth chapter.

Methodological basis of the work the achievements of domestic jurisprudence appeared, in particular the works of scientists on the problems of legal theory. When analyzing texts, the dialectical-materialistic method of cognition of objective reality was used, as well as special scientific methods (historical, logical, functional, systemic, comparative) and private scientific methods (formal legal and comparative legal).

Empirical basis research compiled the works of domestic scientists such as V.N. Kudryavtsev, V.P. Malakhov, A. Khodov, A.F. Cherdantsev, V.S. Nersesyants, R.T. Mukhaev and others.

CHAPTER 1. P. LEROUX ABOUT LEGAL INSTITUTIONS

Pierre Leroux (1791-1871), the first French solidarist to receive technical education, and his intention was to spend the working life of an engineer, for which he was preparing. Being, however, a widely read and interested person social problems, he inevitably began to think about the contradictions of his contemporary life in post-revolutionary France. On the one hand, legislation based on the Napoleonic Code required the formal application of the principles of freedom and equality (brotherhood never received legal formalization), and on the other hand, economic life clearly led to class struggle, which this Code not only did not prevent, but as if, on the contrary, he encouraged it. At the same time there appeared whole line extreme movements that demanded the destruction of all modern social and political institutions and the actual equalization of all citizens. Circumstances that prevented Leroux from completing his technical education prompted him to become increasingly involved in politics. One can have different attitudes towards his political career, which ultimately made him the first minister of social policy of the French Republic, where he showed neither sufficient insight nor sufficient organizational talent, but one cannot help but give him the palm in those new ideas that formed the basis of the basis of solidarity.

Already in his first book “On Humanity” Leroux first analyzed the connection between legal institutions(property, family, etc.) and social development. In it, he calls not to destroy these institutions, but to subordinate them to the public good, to give them the form that, in a given period of development of society, will bring the greatest benefit to social progress: “If the family, the state and property have caused so many evils so far, this, once said, not because these are bad things, but because they, instead of being organized in such a way as to serve the unlimited communication of a person with his kind and the world, were in fact turned against this communication. Family, homeland and property are finite things that must be organized with an eye to infinity. Because man is a finite being that strives for infinity. Absolutely finite is evil for him. The infinite is his goal, the unforeseen is his right. Let this unforeseen, in which progress lies, be taken away from him; let the family, the state and property be organized with finitude in mind, and evil will reign on earth...”

Leroux, therefore, does not deny legal norms, but requires that they be linked to the prospects for social development. For the first time, law came closer to the doctrine of society. The idea was so new and unusual that when Comte took it up and made a further attempt to bring normative ideas (i.e., law) and sociology closer together, there was general indignation among his students. The new ideas of the “Course of Positive Policy” even began to attribute the mental illness of the father of sociology, not realizing that in essence he was completely healthy and important step forward. All this unreasonably raised noise could not, however, stop the further rapprochement of jurisprudence and sociology, and the junction was achieved on the threshold of the 20th century mainly thanks to the efforts of the solidarists of the second period of development of this teaching, to which we are moving on.

CHAPTER 2. THEORY OF QUASI-CONTRACT L. BOURGEOIS

If solidarity is to become the basis of life for a more perfect human society, then it must first of all create a solid legal foundation for such a society. Biological solidarity in itself does not create such a foundation; were needed additional reasons from the field of human psychology, general theory of law, traditions of human civilization. This is the starting point of the theory of legal solidarism, which was created by the famous French political figure Leon Bourgeois.

Leon Victor Auguste Bourgeois was born in Paris in 1851, received a substantial legal education and is the author of numerous works on issues of law, sociology and economics. He was a member of parliament, a senator, and served as minister of public education, justice and foreign affairs. In 1895 he was Chairman of the Council of Ministers of France. The bourgeois fought all his life for those social measures that are now considered necessary part social structure of each cultural state, but which were almost absent in his time, which led to constant conflicts between different layers of European society.

A presentation of Bourgeois's ideas - excerpts from his book “Solidarity” and his three lectures from the international conference of solidarists in 1901-02: “Living matter tends to move from a homogeneous (homogeneous) state to a heterogeneous (heterogeneous) state. Functional differentiation of organs occurs, adaptation to different tasks. And stable equilibrium is achieved by a solidary association of individual parts striving for common goal. This association is the main condition for success in the struggle for existence. Kant said: “What constitutes an organism is the reciprocity of its parts.” This is the meaning of all biology. However, we note that nature has its own goals and these goals do not always coincide with ours. The goal that a person living in society strives to achieve is the achievement of justice, but it is not contained in nature. Nature cannot be called unfair; it is simply beyond this concept. There is, therefore, nothing in common between the purpose of nature and the purpose of society. Nature is not interested in justice, but it is important to people; they cannot do without it. There is no sustainable society, peace and progress where justice is not considered the main goal. When it is violated, conflicts, wars, revolutions occur... Where this idea came from or where it was derived from does not matter; the main thing is that it exists. Ideas, as they say, are facts: I note this fact - the idea of ​​justice... Justice is not realized in a society whose members do not recognize themselves as debtors (of society). Not a single result of intellectual, moral or physical activity a person cannot be achieved by his own strength, by his own person... A person who lives in society and cannot live without it is a debtor to it... All the knowledge that I possess is the result of enormous work done in the passage of centuries; the language I speak has been developed by countless generations of people... Not a single act of production is possible without instruments of production that someone invented, etc. I use all of this; how can I declare myself independent from the society to which I owe. In view of all this, I have actually, wittingly or unwittingly, assumed a debt which I have no right to reject without becoming an insolvent debtor... Obligations towards other people are not the result of an arbitrary decision; they are simply payment for the benefits that everyone receives from society, the price of the services that society provides to its members. Where the force of circumstances places men in relations which they had no opportunity of previously discussing, the laws must define the nature of their relations in such a way that it is merely an interpretation and formulation of such terms of contract as they themselves would accept if they could act as free and equal contracting parties. A quasi-contract is nothing more than an agreement adopted retroactively...”

This is the theory of social quasi-contract, one of the main theories of French solidarism. If there is an agreement between all men, or, as Bourgeois puts it, a quasi-contract, then this places legislation, especially social legislation, on a new solid basis. Based on the fact of the contract, one can logically deduce not only all the duties of a person and a citizen in relation to society, but also the duties of society in relation to its members. Program social reforms, which Bourgeois once proposed and which is now generally accepted throughout the cultural world, was derived from the theory of quasi-contract.

Bruno, one of Bourgeois' students and followers, set out to show how a system of law based on a quasi-contract should be built. In his exceptionally valuable work “Solidarity as the Basis of Law” (1903), he, designing an entire system of law based on a quasi-contract, mandatory not only for individual citizens, but also for public authorities.

CHAPTER 3. OBJECTIVE TEACHING ABOUT L. DYUGY’S LAW

Duguit Leon (1859-1928) - famous French lawyer, dean of the Faculty of Law in Bordeaux (since 1886). One of the authors of the theory of the “supra-class” corporate state (solidarism). D.'s theory of law was based on the achievements of French sociologists - the scientific positivism of O. Comte and the thesis developed by E. Durkheim that as the social division of labor deepens, social cohesion in society increases, since common and individual needs people can be satisfied only through mutual assistance and mutual exchange of services.

First of all, Duguis analyzes the modern doctrine of the state, which is considered a subject of law, as if a special collective person having “rights” similar to the rights of individual citizens. The source of these rights of the state is considered to be the expressed will of the people in one way or another. For example, Bluntschli’s definition is popular among lawyers: “The state is the politically organized personality of the nation living in a given territory.” Some jurists consider the collective will of the “moral individual” to be the essence of the state. “All this,” says Duguit, “is a metaphysical theory of the state, coming directly from Rousseau and expressed in its purest form in the constitution of the French Revolution... For others, the state is an organized society, a biological reality, a living being just like any organism , a huge organism consisting of individuals... It is thought of as an organism and a will; the organism as the support of this will.”

There is a third theory, due to Jellinek, which Duguis also cites: “The personality (of the state) is not the basis, but the result of a legal society... The concept of the personality of the state is confirmed by the fact that only it can provide a satisfactory legal basis for the system of public law.”

Whatever the authority and talent of the authors of all these doctrines, Duguis continues, all this is just a set of fictions and hypotheses. Any science, including legal science, must deal with real things, otherwise it cannot be a science. Legal systems based on fictions are built on shifting sand and will not last long. Supporters of the “state personality” argue that the state cannot exist without a system of public law, and the latter without the theory that the state is a special kind of person, also without the theory that each person has inherent rights. They have never been able to prove all this and are spinning in a vicious circle. “For centuries,” says Duguis, “it has been argued that people, as individuals, have rights, and all legal theories were based on this hypothesis.

IN early XVIII century, this doctrine of natural law was finally established... This doctrine for the first time declared that the state is limited by law, and this will be the eternal contribution of the French Revolution... But, based on the natural principle, they (the delegates of the Estates General) could not complete their work... It is especially noteworthy that although the power of the state may be limited by the theory of natural rights, the positive duties of the state cannot be determined from this principle.”

In his criticism of legal fictions, Dugis also denies a number of other concepts familiar to modern civilization - the doctrine of sovereignty, especially the unity of sovereignty and the unity of statehood, as well as anyone’s right to power. He declares all this to be fictions that arose for practical purposes, but are not applicable for strictly scientific analysis.

In conclusion of my critique legal concepts Dugis says the following: “The world of law is not a world closed in itself, as some lawyers try to show us, an ideal world far from reality; in fact it is a world of concrete facts that must be explained and classified, a world of human wills that must be understood in their concrete manifestations: the social effect that these wills produce, the material force that they set in motion, must be determined and appreciated. Our efforts have always been directed in this direction.”

In contrast to all the fictions and prejudices of modern law, there is one basic fact of purely objective and scientific significance - the fact of solidarity. The Bourgeois school, as is known, distinguished between two types of solidarity - solidarity as a fact and solidarity as a norm. The first type of solidarity is also known as “interdependence”, or “reciprocity”, a special kind of functional connection between members of any society. Duguit has only this kind of solidarity in mind when he speaks of the “fact of solidarity.” Solidarity, according to Duguit, is not moral standard, but if a person wants to live, and he can only live in society, he must draw the appropriate conclusions from the fact of solidarity. Thus, indirectly, solidarity is still the foundation of human behavior, although it does not have the character of something absolute or imperative.

Duguis then moves on to analyze solidarity. He begins this analysis with an analysis of some facts relating to the individual: “At the basis of all phenomena where a person is a factor lies the irreducible (elementary) fact of the individual self-conscious consciousness... “I am aware, therefore I exist” is not a declaration the principle of individualism, but the affirmation of an indisputable reality, the only indisputable reality... “The thing in itself” German philosophy is nothing more than an individual thought... This consciousness can be subject to external influence, its entire content may have come entirely from outside... It may be exclusively social; perhaps, as we ourselves wrote, man thought socially before he learned to think individually; maybe a person thinks only because he lives in society; maybe even that the only object reality is society. What does all this change? Individual, self-conscious consciousness is a fact that stands above and beyond any philosophical or social teaching.”

The second fact, according to Duguis, is the desire of the individual to influence the external world; it is will as a factor and action as a manifestation of this factor. Whether this will is free or not does not interest us at all in this case, since our task at the present time is only to collect indisputable facts. The fact of the existence of will consists in the desire to achieve certain goals that a person sets for himself. This desire is a fact, but the goals themselves may be completely unreal and imaginary. This aspect of the matter should not interest us in this regard either.

Speaking about society, we should first of all warn against denying the only real fact that consciousness can only be individual, we do not know any other consciousness. Consciousness, however, grows with an increase in its content; it grows, first of all, with the awareness of its connection with others. Therefore, the more a person understands human solidarity, the more he desires it, the more he strives for its implementation, the more his personality grows.

“The opposition between socialism and individualism, in the modern meaning of these words, has no rational basis,” says Duguit. - When a person becomes more social, he becomes more individual; and if it becomes more individual, it becomes more social.”

The third fact is solidarity itself. It is of two kinds: solidarity due to similarity and solidarity due to the division of labor. Regarding the first, it should first of all be pointed out that it is obvious to most people that life in society delays death and reduces possible human suffering, and this suffering is already such an “objective fact” that no one will argue with its existence. On the other hand, the existence of society at all times of human history, the life of a person in society, and not in isolation, is also an impressive scientific fact. It influences human consciousness throughout a person’s life, and therefore also influences human will. Dugi notes that it would be wrong to approach this. To social life only from a physical or biological point of view that the fact of consciousness is integral to social life, and the latter cannot be studied without recognizing this fact. The will to live, the sense of self-preservation dictate that in society we find shelter and protection, and lead to the development of a sense of solidarity. This feeling binds society together, makes it possible, although this feeling itself remains personal, not collective. This does not mean, however, that one should accept the theory social contract. People have never lived separately, and therefore could not “come to an agreement later.” The quasi-contract theory should also be discarded as a relic of an outdated legal technique. Solidarity and society are natural phenomena, although the concept of “natural” should include such facts as individual consciousness, human will, and solidarity.

Solidarity by similarity is conscious solidarity; people know that they have it both as a consideration of profit and as a subconscious feeling. It should also be noted that solidarity began as solidarity in a specific, small group and only gradually develops into universal solidarity. The basis of solidarity due to the division of labor is the inequality of people. People have different needs and different abilities, and these differences increase with the course of human history. The idea of ​​“equality before the law” does not contradict these facts in any way; egalitarian ideas generally appeared with the growth of differentiation of people and are one of the types of expression of the second type of solidarity. A correctly understood idea of ​​equality is not the idea of ​​complete sameness of people, but the idea of ​​their equivalence, connectedness, and interdependence. The division of labor is a sign of a high degree of development of highly differentiated individuals and, at the same time, a high degree of development of society. How more people specialize, the less they can live in isolation, outside of society; the degree of social integration is a function of the degree of individualization.

Law and the state must be built on the recognition of facts. They, that is, law and the state, have an official, functional meaning; they should be external manifestation solidarity, to comply with it. Duguis speaks in this sense about objective law and gives it a pragmatic, purposeful character. The state must not only protect the individual, but also promote its development; the state must have the right to intervene in the life of society, but at the same time, responsibilities that it has not had before must be imposed on it. With all this, the formula must be observed - social and individual development go hand in hand and are impossible without each other.

In his numerous works, Duguis shows how, based on the principles of objective law, one should proceed to legislation that would ensure the progress of man and society, promote the solidarity of people and punish violations of solidarity. Objective law is above the legislative chambers; a law becomes such only if it complies with the principles of solidarism, in otherwise This is only legalized lawlessness. Property rights individuals are protected only in so far as it corresponds to their social function.

Duguis, however, is not only a lawyer, but also a political theorist; he not only lays the foundations of a new legislation based on objective science, but also develops a program for a new system, in many ways similar to the program of Russian solidarists.

It should also be noted that the system of objective law of the French solidarist Hauriou, different from Duguis, is based on objective, “everyday elements of the nation, brought into state regime”.

CHAPTER 4. CRITICS OF THE OBJECTIVE TEACHING OF LAW

Dugay's ideas were met with considerable interest in the scientific and legal world; there were both ardent defenders and harsh critics. Three are selected from the numerous critical literature interesting works- Saratov lecture by prof. E. Spectorsky (1911), an article by the Australian lawyer V.D. Brown (1915) and an article by the English lawyer V.I. Elliot (1922).

E. Spectorsky is neither a supporter nor an opponent of solidarism; he just wants to make it clear historical role And possible types for the future. His assessment of Duguis's work is generally positive. His statements regarding the theory of objective law: “This point of view cannot but be recognized as fresh and fruitful... All this could not but bring great benefit to jurisprudence... They (lawyers) had to remember that law exists for people, and people live in society. And in order to discover and establish the principles of law, they left the tempting, but also deceptive, realm of metaphysics and began to orient law in public life. All this updated and deepened jurisprudence. It found itself on solid ground and, like the legendary Antaeus, received new strength from touching the earth. But this also contained and contains considerable danger for him. The fact is that sociology has always strived and strives to become something like the physics of social life, a science that subordinates its ontology to laws of an exclusively mechanical type. Jurisprudence always remains a moral science, studying social life from the point of view of deontological law. And so, when sociology overly subordinates or even absorbs jurisprudence, then nothing remains of everything specifically legal... And the supreme idea of ​​law becomes some kind of not even legal, but socio-physical automatism. If Bourgeois and Duguis more or less safely avoided this danger, then the same cannot be said about Hauriou with his theory of equilibria and social automatism. Despite this drawback, positive side The theory of solidarity is that it has found some kind of solution to the question of the interaction of jurisprudence and sociology. Thus, the doctrine of solidarity is fundamentally interesting, first of all, because it brings jurisprudence closer to sociology. Connected with this is that it gives a bare theory of the state... In addition to a new theory of the state, the doctrine of solidarity also gives new theory rights. The essence of the change lies, first of all, in the fact that it decisively denies the imperative theory of objective law... The new theory of law leads to a new theory of the sources of objective law... In accordance with the general tendency of solidarists to build a theory of law not from the outside, but from within, from their own life of society, autonomy is put forward as one of the main sources of law... Thus, the decentralized theory of the state leads to the decentralized theory of law.”

This article, which appeared in the “Legal Bulletin” for 1912, received sufficient fame in its time and for the first time showed Russian, then still pre-revolutionary, society the whole complex of problems of legal solidarity.

The ideas of legal solidarity in Anglo-Saxon countries were met quite differently. The Australian Brown approached Duguit's criticism eye-to-eye from a practical point of view, i.e. not from the point of view of the legislator, but from the point of view of the judge. He admits that Duguit's teaching is a useful corrective to the dominant school of Austin, who, under the influence of German legal science, reduced all law to an order supreme power, to which everyone must obey. But he does not see how Duguit's teachings can be used in court.

“Yes, of course,” he says, “let’s get away from legal fictions, let’s build our doctrine of law on facts, but let these facts be such that they can be used in court.”

Brown elaborates on separate parts Duguit's teachings, showing them, in his opinion, to be inapplicable to trial. Let us take, for example, Duguit’s doctrine that state power is not sovereign, but subordinate higher law. What judge can refuse to judge a law issued by a higher authority on the grounds that that law does not conform to the principles of objective law? Or - should a judge really test each article of law in the sense that its application in a given case will achieve a social purpose? Is not the state that makes the law the final judge in this regard? Further, it is doubtful that laws are made as such not because the relevant parliament decided so, but because they are the manifestation and application of objective law. Law is what corresponds to the law, and not vice versa. True, sometimes a judge has to decide a case not foreseen by law. To do this, he is looking for a solution in the spirit of the law, but not in the spirit of some “social function”. And what, finally, does the government’s duty to “govern well” mean? Regarding secondary powers, Duguis may be right, since in all states greater efforts are being made to avoid abuses, but regarding sovereign power there is no such authority to which one could appeal, with the exception of “objective law” itself, and even then this is possible only in a revolutionary manner.

Brown's objections lie in the plane of an international misunderstanding: a British lawyer, a traditionalist and practitioner, cannot understand a French innovative scientist looking for a foothold after three revolutions and in unsatisfactory circumstances social conditions contemporary France. He attributes to Duguis the desire to bring chaos to the judicial procedure, to effectively abolish all laws and replace them judicial interpretation objectively- social law. Duguis did not offer such a recipe; he was interested in giving advice not so much to judges as to legislators. And it is natural that if the laws are in the spirit of objective social law, then the interpretation of the laws by judges will be in the same spirit. At present, half a century after Brown’s article, not only in fascist and socialist countries we have seen the tendency of judges to socially interpret laws (though most often in ugly forms), but also in democratic countries of Europe, the USA and Australia itself, courts are increasingly showing interest in social results their decisions. Dugis in this sense was, to a certain extent, a prophet of the future development of jurisprudence.

Elliott's critique in his article “The Metaphysics of Duguis's Pragmatic Conception of Law” contains a more substantive discussion of the principles of objective law; it is aimed at the very foundation of legal solidarism and tries to show that this foundation is as metaphysical as those theories against which Duguis himself so stubbornly fought.

“Social interdependence,” says Elliott, “may make people think about the need for social solidarity, but it does not create this desired effect as a fact. The fact is that social solidarity is precisely one of those ideal goals that at the same time are important needs existing in the minds of people, but cannot be approximately realized. In the light of what we know of these ideal ends, our “fact” takes on as much metaphysical character as can be imagined; he leads us directly to questions of orthodoxy, which we supposedly should have avoided by his recognition.” This sophisticated reasoning is not difficult to refute by reference to an actual text from Duguit’s works. First of all, for Dugis, interdependence and solidarity are the same thing, and therefore one does not cause the other; secondly, solidarity, realized by people, members of society, does not, according to Dugis, have an absolute, imperative character. These are all undeniable facts without any metaphysical background.

Elliot further compares two excerpts from Duguis and discovers a seemingly striking contradiction in them. In one, Duguis says that “in all social groups that we consider states, there are individuals stronger than others who can impose their will on others,” in the other, however, he argues that these rulers, “who, by definition, have the greatest force existing in a given society, are still obliged by the “rule of law” to use their forces to realize social solidarity.” And elsewhere: “both individuals and rulers have legal obligations, based on social interdependence.”

Dugay's terminology here is indeed somewhat lame, since he uses familiar words in an unusual sense. The point is not, first of all, about moral duties, since Duguis excluded the concepts of morality from his consideration as metaphysical, but about legal duties, again not in the generally accepted sense, but in the sense that failure to fulfill them causes a social reaction. In the case of individual members of society, this is a punishment for violating solidarity; in the case of rulers - a palace coup or revolution, sometimes simply a loss of votes during elections. We do not find anything metaphysical or contradictory here either.

Duguis was the first among the solidarists to apply, at least partially, the method of understanding to social phenomena. His positivism, inherited from his school days, was thus significantly expanded by the inclusion of human consciousness, will, solidarity, etc., as facts of social reality. However, he did not go far enough along this path and, as a result, as Elliott points out, he too primitivized the mechanism of power. There was, for example, no need to exclude moral ideas from consideration, since their existence among civilized people is also an undoubted fact, even if only as a state of consciousness, stating a violation of the expedient social structure. We also have to agree with Elliot that although Duguis mentioned consciousness as a fact, he avoids talking about it in his further presentation. AND Creative skills consciousnesses are not used in constructing a theory of power and the state.

Duguit's teaching is of exceptional importance for the theory of legal solidarism. Duguis pointed out the path along which the further development of this theory could take, although his teaching currently requires not only significant amendments, but also a thorough restructuring.

CHAPTER 5. SOCIAL LAW IN ENGLAND AND RUSSIA

The idea that law exists only as a social institution and is the result of centuries-old evolution of society already existed before Dugis. Two authors are especially famous as the founders of the system of social law: the Englishman Thomas Hill Green and the Russian N.K. Korkunov. They laid the foundations of legal solidarity earlier than the term “solidarism” itself appeared in 1891. Their ideas were adopted by later solidarists, including the Russians. The history of the evolution of legal solidarism would therefore be incomplete and incomprehensible without at least a brief overview of their teachings. That these teachings relate to solidarism was noted by Spectorsky (in relation to Korkunov) and other researchers.

In the second half of the 19th century, England began to move away from the highly individualistic and very uncritical way of thinking that was once so characteristic of this country. The University of Oxford became the head of this new movement, and one of its main spiritual leaders was a professor at this university, T. H. Green (1836-1882). The reciprocity of relations between the individual and society is, according to Green, the basis of morality: “The human self is the social self.” The highest form of society, he said, is one in which equal is united with equal and in which the main bond of the members of society is their loyalty to it and its goals. Society must provide each of its members with the right to moral self-determination and human dignity, which is both a condition for the development of the individual and his right. However, freedom has not only the individual, but also social character. Based on freedom, the so-called liberal state (in the English sense of the word) is not such if it does not interfere in anything and does not contribute to the development of society.

Green's doctrine of law is especially important. “Right,” says Greene, “is power claimed and recognized as consistent with the good of society,” “a right not against society, but a person’s right to be treated as a member of society.” This is the right to participate in society and contribute to its development.

Law, therefore, consists of two elements. The first element is a claim for freedom of action, which is the result of a person’s desire to demonstrate his inner strengths and abilities. This desire, however, does not in itself justify the right; It is also required that the individual take into account the equally legitimate desires of other people. The second element is public recognition of the aspirations of a given individual; confidence that her free activity is in the public interest. The public interest, however, is the sum of the interests of individuals. Society has responsibilities towards its members just as the latter have responsibilities towards society. Law must, therefore, be built on a system of rights and obligations of both the individual and society.

Prof. N. M. Korkunov (1853-1904), author of the famous work “Decree and Law,” was not only a defender of the theory of social law, but also Duguit’s predecessor in the desire to create an objective doctrine of law. It requires the abandonment of two fictions: the view of the state as a person and the belief in a special state will. Where, he asked, is there a single will in constitutional states, especially with parliamentary government and the struggle of parties? Where is this will in the republics? Where to look for it in cases where two institutions argue with each other, and a third resolves their dispute? Here, as it were, there are three wills... In a word, the basis of the power exercised government agencies, is not that there is some kind of higher state personality dictating his highest will, but that people living together are bound by the consciousness of mutual dependence. Korkunov is trying to build a theory of the state as legal relationship, in which the subjects are citizens, and the object is the government.

CHAPTER 6. GINSA'S TEACHING ABOUT LAW

Among the Russians for more than a hundred years there have been people who attached particular importance to solidarity, conciliarity, reciprocity, “constructive altruism”; in Russia there were many followers of Leroux and Dugis, admirers of Fouillet, but no one before prof. G. Ginsa did not clearly and openly call himself a solidarist. His primacy in this relationship is undeniable.

He came to the idea of ​​solidarity on his own, while working on his dissertation on water law, which he defended in Paris in 1929. Gins did not find “any developed socio-economic doctrine” among the French solidarists and decided to develop it himself, borrowing from the French only the very term “solidarism”. In his main work “From liberalism to solidarism” (“On the path to the state of the future”), written in 1930, as well as in later books and articles, Gins tries to give “an economic, psychological and legal justification for solidarism” as a single coherent system. IN this article we, however, will be interested only in his doctrine of law, - the area of ​​solidaristic teaching, to which Gins himself attaches exceptional importance: “ Practical side“solidarism,” says Gins, “harmonization of public and personal, state and individual legal relations.” This idea of ​​harmonization of public and private interests, rights and obligations should become the basis of the “new law” and is the reason why solidarity will become both a factor and a product of progress. Let us present several consecutive excerpts from Gins’s main work, explaining this idea: “The formula “from liberalism to solidarism” means movement, a transition from one order to another.

Law introduces a harmonious principle into human society; it balances active forces, distributing rights and responsibilities. If solidarity brings greater uniformity to the distribution of rights and responsibilities, it subordinates all living things to the principle of harmony social forces... then we can say that solidarity is the conquest of progress.

Legal principles and views express psychology, which, in turn, is determined by the state of culture and external conditions. From this point of view, solidarism is a product of a developing culture... Finally, from the point of view of harmonizing the active principles of social life, solidarism is most suitable modern conditions. Individualism and social tendencies will be most harmoniously reconciled in solidarity.” The theories of law that exist so far obviously do not contain sufficient elements for this harmonization. Applying the “old law”, the state must either take the decision of any issue into its own hands, or retreat to the principle of the inviolability of private rights.

At first, learned lawyers tried to break new legal relations into constituent elements, taken from public and private law, to create a new “mixed system” of law corresponding to the reality of the 20th century. About her, however, Prof. Gins says the following: “ Mixed system, combining private and public law, lacks certainty. Either one or the other can predominate in a mixture. Hybrid forms in law are the least suitable; they are tantamount to avoiding a direct answer. If a mixture, like some chemical compounds, creates something new, then wouldn’t it be better to give it a name and define its special qualities and properties?” Therefore, he proposes “instead of forcibly squeezing the newly formed law into one of the existing categories” to recognize it as a new, third type of law and call it “regulatory law”, and “then modern law will consist of three types of law: public, regulatory and private.” Thus, we see that G. Gins is much less radical than Duguis, who believed that the new solidaristic “objective law” should not stand next to the two old systems of law, but completely replace them.

The most important thing, however, is the spirit of the new law, which leaves ample room for initiative individuals, but calling on them to voluntarily cooperate under the leadership of the state: “The main idea of ​​regulatory law,” says Gins, “corresponding to its name, is that the state cannot impose on private enterprise those goals that are alien to it and bring individual or group interests in sacrifice to the “common good”, it can only allow such restrictions - or rather, such subordination or coordination of rights, in the interests of common benefit - that simultaneously bring benefits to those who are subject to restrictions...

Regulatory law, separating itself from public law, supports respect for private rights and becomes a bulwark against the dangerous trends of centralization and socialization of the economy, against the strangulation of entrepreneurship...

Human personality and economic freedom will not be harmed. The state will be a bulwark for the individual against abuse by the public, an organized society against the all-consuming state.”

Gins rarely uses the term “solidarity” in the sense of the existing interdependence of individual members of society, most often in the sense of a moral-utilitarian norm that leads to cooperation. An essentially democratic state (“in its principles and legal guarantees, and not in hackneyed forms of parliamentarism”) should encourage the exercise of solidarity both through appropriate legislation and direct action, if the principles of solidarity are still not implemented or violated.

CONCLUSION

When studying different theories of legal solidarism, one unusual phenomenon catches the eye. G. Gins makes a statement that he only borrowed the word “solidarism” from the French solidarists. Duguis dissociates himself even more decisively from Bourgeois and his school. And Bourgeois himself, only briefly mentioning Leroux, considers legal solidarism his personal discovery. And indeed, the above shows a significant difference in the content of the theories of Bourgeois, Duguis, Gins and Green, despite the fact that by solidarity they understand approximately the same thing - solidarity as a fact and solidarity as a norm. What is common, in any case, is a concept, not just a word or term.

The main difference between these teachings is their subject matter and methodology. Duguit's theme was solidarity as a source of law, and the rights of everyone, regardless of what period of history we're talking about. He tried to find this connection in an “objective” way, excluding any philosophical approach to this issue.

Bourgeois wants to introduce an element of social justice into contemporary French law, without destroying it, but only giving it an expanded interpretation, which leads him to the somewhat unsuccessful, formal doctrine of quasi-contract. This doctrine was not accepted by later solidarists, even French ones, but Bourgeois’s basic idea of ​​social justice in law, on the contrary, became widespread among non-solidarists.

Gins's teaching has a completely different topic: regulatory law and its transition to the coordination law of the future - to the law under a solidaristic system. He is not so much interested in the sources of law in general as in its development in the future. He plans this law, tries to foresee its forms and features, and substantiates it on a solid, realistic foundation.

It is natural for each author to have a certain passion for his own topic, but for the success of solidarism as a movement, it is important to have such an attitude towards the various theories of legal solidarism that would see this subject as a whole and would not lose those grains of truth that are contained in each of these theories. Solidarists are faced with the task of integrating these teachings and further working on issues of solidaristic law.

BIBLIOGRAPHICAL LIST

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Solidarism theory

The theory of solidarism is based on the following postulates:

Society is made up of connections that unite people on the basis of their mutual support (solidarity). Moreover, belonging to the corresponding classes, to social groups, they realize their mission, their duty towards each other. All this is carried out through the cooperation of classes and social groups on the basis of the social division of labor.

The cooperation of classes and social groups is regulated by the norm of social solidarity, which prescribes to refrain from everything that encroaches on that cooperation and to contribute to its strengthening; that social norm of solidarity is clothed in various norms of law that serve as its expression and embodiment.

In accordance with the above, the theory of solidarism sees the essence of law in social solidarity, which the state must take into account. And if this essence of law diverges from one or another of its norms, then a specific case must be decided not on the basis of these norms, but in accordance with the “legal conscience of the era.”

The theory of solidarism rejects the independent status of a subject of law, especially his subjective rights. So, private property it is considered not as a benefit for the person who possesses it, but as a duty, the obligation of the owner to use it to strengthen social solidarity.

Sociological theory of law

This theory received its most logically completed form in the 20th century. Its main developers are E. Erlich, G. Kantorovich, R. Pound, F. Zheni, S.A. Muromtsev and others.

Representatives of this theory put forward the idea of ​​​​separation of law and law. They believed that law is not embodied in natural rights and not in laws, but in the implementation of laws. If the law is in the sphere of what is proper, then law is in the sphere of what is.

By law, therefore, they understood legal actions, legal practice, law and order, application of laws, etc. Law is the real behavior of subjects of legal relations - individuals and legal entities. Hence another name for this doctrine - the theory of “living” law. They also believed that such “living” law was formulated primarily by judges in the process of jurisdictional activities. They “fill” laws with law, making appropriate decisions and in this case acting as subjects of lawmaking.

The advantages of this theory are that such an understanding focuses on the implementation of law, on the existing, where it finds practical implementation. The priority of social relations, as content, over the legal form is justifiably noted. This theory fits well with the limitation of government intervention in the economy and the decentralization of management.

This theory also has weak sides. First of all, this is that if by law we understand the implementation of laws, the real legal order, then clear criteria of what is legal and illegal are lost, because the implementation itself can be both legal and illegal. Due to the shift of the center of gravity of law-making activity to judges and administrators, the danger of incompetent and outright arbitrariness on the part of unscrupulous officials increases.