The emergence of law and its distinctive features

The emergence of law is one of the most complex issues of legal theory. He was the subject of discussions, as several hundred years ago, and today. In any case, each of the opinions has the right to exist. The most popular reasons for the occurrence of the right you can learn by reading the article.

The primitive system

One of the most popular points of view is that the emergence of law occurred in the ancient era of the primitive communal system. It is believed that in those days primitive norms arose.

Professor Malinovsky and Sabo consider that in the role of legislators in this period there were elders or leaders. Later, the grounds for the emergence of rights were entrusted to the church, which was engaged in the regulation of legislation.

Scientific foundations of primitive system

The emergence of law is inextricably linked with myths, rituals, rituals - it is here that a smooth transition from mono- norms, which are represented in the simplest sense, to the norms of economics, morality and law, can be traced.

Already in the period of the primitive communal system, the Neolithic revolution was brewing as a cutoff line. Thanks to this concept began to form the principle of historicism. The postulate is the basis of knowledge of the human world in many sciences, for example, in philosophy, management, sociology, and so on. This principle is used, among other things, to study law, highlight aspects of its origin, identify new theories, and so on.

Grounds for the emergence of rights are concealed in the formation of various associations, namely clans, communities. In connection with these there arises a perfectly legitimate question: has there always been a right? Does the presence of society on its development, if we compare this trend with state development? The answer lies in the numerous theories that take place even now.

Theological theory

The emergence of law explains the theological theory. Her followers are Thomas Aquinas and Aurelius Augustine. This theory is the oldest, and also serves as a basis and development for other justifications for the origin of norms.

The basis of the theological theory is the divine law, which was originated by the Creator. The followers of this theory believe that the Lord gave mankind the rule of law as one of the phenomena of the world. As arguments the authors use the provisions of the Bible, which are laws for the whole people. In addition, it is believed that the emergence of the law is due to the commandments that God gave Moses.

Followers argue that the basis of law is the divine message and the divine mind that rules the world. The second place in the theological theory is the natural law, that is, the system of social relations that have developed as a result of interaction between people.

Of course, this theory is not subjected to scientific evaluation, because it relies solely on the facts of religion and faith. Credible evidence of the above theory, the authors could not bring. As practice shows, adherents of this opinion are Muslim jurists and scientists of Western Catholic universities.

Historical School

Theories of the emergence of law are represented by a huge variety, among which a special place is occupied by the historical concept of the origin of legal norms. Followers of thought are Savigny and Hugo. The historical school is a kind of antipode of natural-legal theory. The concept originated in the early 19th century.

Its essence lies in the fact that law is not something imposed, nor is it created by the legislator, but is formed on the basis of historical development. The emergence and development of law, based on historical theory, depends on two categories of persons: legislators and jurists. Task 1 of the group is the correct processing of legal norms, as well as timely bringing it to the legislator. As for jurists, their task is to grasp and express the mood of the people, express their opinion in legal formulas. In addition, the law is considered effective only when it is fully consistent with public development.

It is worth noting that this theory has certain advantages and disadvantages. On the one hand, it points to the historical development that lies in the formation of all life on earth. And on the other, incomplete consideration of other aspects of the formation of legal norms.

The natural-legal theory of law

Hugo Grotius and Jean-Jacques Rousseau are followers of the natural-legal theory of the emergence of law. They say that, in addition to the norms established by the state, there is an integral and natural part of the law that nature has generated. The natural theory speaks of what is inherent in every person from birth. Even now, modern jurists share the right to two groups: positive and natural rights. This classification has official status thanks to Grotius and Rousseau.

The authors note that natural rights have a priority over positive ones, since they arise from birth, regardless of the norms established by the state. In addition, the theory does not explain the reasons for the emergence of rights, since it is believed that every person from the moment of birth becomes the owner of inalienable privileges.

Regulatory theory

The causes of the emergence of the law explains another theory - the regulatory one. It is characterized by rigidity, since the regulatory direction arose in the Asian countries, where hard legal norms are still in place.

It is worth paying attention to the fact that harsh climatic and geographical conditions, as well as the necessary organization of military activities, have created a totalitarian system of the state. The essence of the theory is the need to establish a strict order of all spheres of state and public life.

As historical practice shows, regulatory norms are necessary at any stage of human development, but the emergence of the property rights of citizens, the state, personal non-property rights, criminal law, as well as other institutions and branches are regulated exclusively by the official authorities of the country.

Conciliatory theory of origin

The creators of the conciliatory concept are Berman and Anners. The authors speak mainly about the purpose of law. Berman and Anners were of the opinion that legal norms exist only in case of conflict situations. Thus, within the tribal community, the right is not necessary to settle social relations, but to resolve disputes.

Marxist theory of the origin of law

The emergence of civil law, criminal, as well as a number of other industries is fully explained by the Marxist theory. Her propaganda was actively conducted in the Soviet Union, as the authors, as one might guess, were Marx, Engels, Lenin and other Soviet jurists.

The essence of the theory is that legal norms express the class character and will of the ruling class. And the necessary component here is the social status and economic situation. It should be noted that this school has a lot of advantages, namely:

1. It provides an opportunity for a thorough analysis of the role of economic relations in society and their dependence on legal norms.
2. The theory suggests that the complexity of public structures requires the most advanced regulatory regulators.
3. Many monuments of law are devoted to reflecting the will of the ruling class, and hence the role of this principle is almost impossible to challenge.

However, there are certain shortcomings: excessive elevation of the role of the economy in the light of consideration of legal norms, underestimation of the features of culture, religion of the state, as well as the lack of consideration of foreign policy interrelations with foreign states.