The teachings of Polybius on the origin of law and state-va. The theory of political circulation.

Views of Thomas Aquinas on the essence and functions of the state-va. Classification of forms of government.

The origin of the state. Unlike St. Augustine, who said that the state is a punishment for original sin, Thomas Aquinas says that man by nature is "a social and political animal." The desire to unite and live in the state is inherent in people, because the individual alone cannot satisfy his needs. For this natural reason, political communities (states) arise. That is, Thomas Aquinas argues that the state is the natural extreme importance of a person to live in society, and thus acts as a continuer of Aristotle.

The purpose of the state is the common good and the rule of law. The essence of power and its elements.

The protection of the interests of the papacy and the foundations of feudalism by the methods of scholasticism gave rise to certain difficulties. For example, the logical interpretation of the thesis "ALL POWER FROM GOD" made it possible to see in it, along with other meanings, also an indication of the absolute right of secular feudal lords (kings, princes, etc.) to govern the state, ᴛ.ᴇ. the legitimacy of the Church's attempts to limit their power or judge its legitimacy was disputed. In an effort to bring the base under the intervention of the clergy in the affairs of the state, Aquinas, in the spirit of medieval scholasticism, distinguishes three elements of state power:

1) essence; 2) origin; 3) use

ESSENCE OF POWER is an order of relations of domination and subordination, in which the will of those at the top of the human hierarchy moves the lower strata of the population. This order is set by God. At the same time, Thomas continues, it does not follow from this that each ruler is placed directly by God and every action of the ruler is performed by God. For this reason, specific ways of its origin or other forms of its construction can sometimes be bad, unfair. Aquinas does not exclude situations in which the use of state power degenerates into its abuse.

Consequently, the second and third elements of power in the state are sometimes deprived of the seal of divinity. This happens when a ruler either comes to power through unrighteous means or rules unjustly. Both are the result of violation of the covenants of the gods, the orders of the church - as the only authority on earth, representing the will of Christ. In these cases, the judgment on the legitimacy of the origin and use of the power of the ruler belongs to the church. Expressing such a judgment, even leading to the deposition of the ruler, the church does not encroach on the divine principle of power, which is necessary for community life. Citizens not only must not carry out the orders of the ruler, which are contrary to divine laws, but they are not at all obliged to obey usurpers and tyrants. At the same time, the final decision on the question of the admissibility of extreme methods of combating tyranny belongs, according to common law churches, papacy.

State form. On the question of the forms of the state, Thomas follows Aristotle in almost everything. He speaks of three pure, correct forms (monarchy, aristocracy, polity) and three perverted ones (tyranny, oligarchy, democracy).

The principle of division into correct and incorrect forms is the attitude towards the common good and legality (the rule of justice). The right states are political power, and the wrong ones are despotic. The first is based on law and custom, the second on arbitrariness, it is not limited by law.

Into this traditional system Thomas introduces his sympathy for the monarchy. Ideally, he considers it the best form, the most natural, because:

First of all, because of its similarity with the universe in general, and also because of its similarity to the human body, the parts of which are united and guided by one mind. (One God in heaven. One king on earth, a person has one body that moves everyone, so in the state there must be a monarch that moves everyone).

Secondly, historical experience has shown the stability of those states where one, and not many, ruled.

At the same time, Thomas was aware of the extreme difficulty of keeping the monarchy at the ideal level, and the monarchy deviated from the goal, ᴛ.ᴇ. tyranny, considered the worst form, like Plato and Aristotle. For this reason, a mixed form of government should be preferred in practice. But if Aristotle represented polity as a combination of the best properties of oligarchy and democracy, then in Thomas the monarchical element predominates in a mixed form. The leading role in it is played by large feudal lords (secular and spiritual fedals - "princes of the church"). The power of sovereigns depends on the law and does not go beyond its limits.

On the issue of the relationship between church and state, Thomas adhered to ideas that have become traditional for the papacy (the supremacy of church power), but in moderate forms.

The papacy considered the entire Christian world as a unity, a kind of huge state, ruled by the vicar of God - the Pope. The papacy was endowed with secular power. Thomas in this regard is distinguished by restraint and the desire to justify the spiritual nature of the intervention of the papacy in the affairs of the emperor and kings. In his understanding, the two powers are related as soul and body. Of course, spiritual power is higher than secular, material. Thomas justifies the jurisdiction of the popes by the extreme importance of punishing sinners and removing them from power. A king who is guilty of heresy must be removed, the Pope can release his subjects from the obligation to obey a sovereign who has sinned against the faith.

The philosopher pays attention to the art of government. The ruler needs deep knowledge, true faith and knowledge of political science (he calls it "active science"). Only in this case will the consent of the estates be reached and the "common good" will be realized, ĸᴏᴛᴏᴩᴏᴇ is the goal of the state.

Polybius is the last major political thinker of Dr. Greece. The "History" written by him in 40 books sanctifies the path of the Romans to world domination. Polybius is not free from traditional ideas about the cyclical development of social and political phenomena. The cycle of political life is manifested in his successive change of six forms of state.

First there is a monarchy - the sole rule of the leader or king, based on reason. Decaying, the monarchy passes into tyranny. Dissatisfaction with the tyrant leads to the fact that noble men, with the support of the people, overthrow the hated tyrant. This is how the aristocracy is established - the power of the few, pursuing the interests of the common good. The aristocracy, in turn, gradually degenerates into an oligarchy, where a few rule, using power for money-grubbing. By their behavior, they excite the people, which leads to a coup. The people, no longer believing in the rule of kings and a few, lay the care of the state on themselves and establish democracy. Its perverted form - ochlocracy - is the worst form of state-va. Then the power of force returns, and the crowd gathering around the leader kills until it completely runs wild and again finds itself an autocrat. The development of the state thus returns to its beginning and repeats itself, passing through the same stages.

To overcome the cycle of political forms, it is extremely important to establish a mixed form of the state, combining the principles of monarchy, aristocracy and democracy, so that each power serves as a counter to the other.

At the same time, Polybius highlights the political structure of Rome, where all three basic elements are represented: monarchical (consulate), aristocratic (senate) and democratic (national assembly). By the correct combination and balance of these powers, Polybius explained the power of Rome.

Conclusion: the political concept of Polybius served as one of the links between the political and legal teachings of Dr.
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Greece and Dr. Rome. In his discussions about the mixed form of government, the thinker anticipated the ideas of the bourgeois concept of "costs and balances".

37) The question of the relationship between church and state in the political and legal treatise of Marsilius of Padua ʼʼDefender of Peaceʼʼ. Marsilius' doctrine of secular power.

Marsilius of Padua (c. 1275 - c. 1343).

In his lengthy essay, The Defender of the World, Marsilius of Padua holds the church responsible for all the troubles and misfortunes of the world. Οʜᴎ are eliminated, if only from now on churchmen will deal exclusively with the sphere of the spiritual life of people. The church must be separated from the state and subject to secular political power. This power and the state representing it arose, as Marsilius believed, in the process of a gradual complication of the forms of human community. At first, families in the name of the common good and with common consent unite into clans, clans into tribes. Further, cities are consolidated in the same way and for the same purpose; the final stage is the emergence of a state based on the general consent of all its constituent persons and pursuing their common good. In this description of the origin and nature of the state, it is easy to recognize traces of the corresponding Aristotelian ideas. Marsilius defended a very bold (for those times) thesis that the real source of all power is the people. From him comes both secular and spiritual power. He alone is its bearer and supreme legislator. True, by the people Marsilius of Padua meant by no means the entire population of the state, but only the best, most worthy part of it. How deep remained in the XIV century. conviction in the naturalness of the inequality of people, says the fact that Marsilius also divided the members of society into two categories: higher and lower. The highest (military, priests, officials) serves the common good; the lowest (merchants, farmers, artisans) takes care of their private interests.

State power operates primarily through the issuance of laws. Οʜᴎ are commands backed by the threat of real punishment or the promise of real rewards. In this way, the laws of the state differ from the laws of God, accompanied by promises of rewards or punishments in the afterlife. The people have the right to issue legal laws. Based on the political practice of the Italian city-states of that period, Marsilius concretizes this fundamental prerogative in the sense that the people most deserving to carry out such a mission, elected by the people, should legislate. Laws are obligatory both for the people themselves and for those who issue them. Marsilius clearly expresses the idea of ​​the utmost importance to ensure a situation in which those in power would certainly be bound by the laws they themselves promulgate.

The author of ʼʼDefender of Peaceʼʼ was one of the first to draw a clear distinction between the legislative and executive branches of the state. Moreover, he wrote that the legislative power determines the competence and organization of the executive power. The latter generally acts by virtue of the authority that the legislator gives it, and is called upon to strictly adhere to the framework of the law. This power should be arranged differently. But in any case, it must carry out the will of the legislator - the people.

Summarizing the experience of the functioning of political institutions that existed in many contemporary Italian republics, Marsilius gave an important place to electivity as a principle of constituting institutions and selecting state officials of all ranks. Even under the conditions of a monarchy, which seemed to him the best state structure, this principle should have acted. An elected monarch, Marsilius believed, is usually the most suitable ruler, and therefore an elective monarchy is much preferable to a hereditary monarchy. In the history of political and legal doctrines ʼʼDefender of Peaceʼʼ is a bright phenomenon. Marsilius of Padua bluntly and convincingly defended the independence of the state (its independence from the church) in matters related to the administration of public power. His thoughts about the people-sovereign, about the relationship between the legislative and executive powers, about the binding nature of the law for all persons in the state (including rulers), etc., had a beneficial effect on the formation of the Renaissance and the New time of ideas about democratic

political system society.

38) N. Machiavelli's doctrine of political art. The main theoretical provisions of the treatise ʼʼThe Sovereignʼʼ.

The actions of the founders of states should be judged not from the point of view of morality, but according to their results, according to their attitude towards the good of the state.

"In deeds, they judge by the end - whether it has been achieved, and not by the means - how it has been achieved." "Let the sovereign do what is necessary to win and keep the state, and the means will always be considered worthy, and everyone will approve of them."

States, wrote Machiavelli, are created and preserved not only with the help of military force; methods of exercising power are also cunning, deceit, deceit. “The sovereign must learn what is contained in the nature of both man and beast. Of all the animals, let the sovereign become like two: a lion and a fox. and a lion to scare away the wolves."

A politician, he says, should never reveal his intentions. It is foolish to say, asking someone for a weapon, "I want to kill you," first you need to get a weapon.

In order to strengthen and expand the state, a politician must be able to decide on great, virtuoso atrocities, meanness and betrayal. In politics, the only criterion for evaluating the actions of the ruler of a state is the strengthening of power, expanding the boundaries of the state.

For all that, Machiavelli taught, treachery and cruelty must be done in such a way that the supreme power is not undermined.

From this follows one of Machiavelli's favorite rules in politics: * "one should either not offend anyone at all, or satisfy one's anger and hatred with one blow, and then calm people down and return them confidence in security"; * Better to kill than to threaten - by threatening, you create and warn the enemy; by killing, you get rid of the enemy completely; * · cruelty is better than mercy: individuals suffer from punishment, mercy leads to disorder, giving rise to robberies and murders, from which the entire population suffers;

* · A ruler incapable of cruelty will not be able to retain power. It is better to be stingy than generous, since generosity cannot please everyone, and finally it turns into a burden for the people from which money is extracted, while stinginess enriches the treasury without burdening the subjects; * It is better to inspire fear than love. They love sovereigns at their own discretion, they are afraid - at the discretion of sovereigns, a wise ruler should rely on what depends on him. The prince should keep his word only when it is beneficial to him; otherwise he will always be deceived by treacherous people; * · Politics requires meanness and cunning.

* · All grievances and cruelties must be committed at once. * · In politics, it is harmful to hesitate, the inadmissibility of the middle way. * · The worst thing is to encroach on people's property. * · If the commander won the war, he must be removed and the victory assigned. * · In case there are many people to be executed, one person should be entrusted with it and then executed. * · Cesare Borgia, the Duke of Romagna, considered the ideal statesman. * · In appearance, the prince must appear to be the bearer of moral and religious virtues. * In order to honor the ruler, he suggests using a number of measures:

a) perform unusual acts and military campaigns; b) to reward and punish in a way that is remembered; c) protect the interests of a weak neighbor; d) take care of the development of science and crafts;

e) organize mass holidays; f) to participate in meetings of citizens, to maintain dignity and greatness.

He pointed out three reasons why sovereigns were deprived of power: * · the first - enmity with the people;

* second - the inability to secure oneself from the intrigues of the nobility and rivals; * · the third - the lack of own troops.

Military-political doctrine. The basis of power, according to the ideas of Machiavelli, are good laws and a good army. But there are no good laws where there are no good troops. At the same time, where there is a good army, all laws are good. The army should be of three types: own, allied, hired. Mercenary and allied troops are of little use and dangerous.

It is best when the sovereign personally leads the army, since war is the only duty that the ruler cannot impose on another. A wise prince should always rely on his own army, in connection with this, his main concern should be military affairs. Whoever neglects military craft always runs the risk of losing power.

Conclusion: Machiavelli's merit in development political theory are great:

* he rejected scholasticism, replaced it with rationalism and realism; * · laid the foundations of political science; * · came out against feudal fragmentation, for a united Italy;

* Demonstrated the connection between politics and forms of the state with the "social" struggle, introduced the concept of "state"

Formulated the contradictory, fraught with abuses and disasters, but the eternal principle "the end justifies the means."

ʼʼSovereignʼʼ(1513) Sovereign Machiavelli - the hero of his political treatise - is a reasonable politician who puts into practice the rules of political struggle, leading to the achievement of the goal, to political success. Keeping in mind the state interest, the benefit of the government, trying to ʼʼwrite something usefulʼʼ, he considers it ʼʼmore correct to look for the real, and not the imaginary truth of thingsʼʼ. He rejects the writings about ideal states and ideal sovereigns that are common in humanistic literature, corresponding to ideas about the proper course of state affairs: ʼʼMany invented republics and principalities that had never been seen and about which nothing was actually knownʼʼ. The goal of the author of ʼʼThe Sovereignʼʼ is different - practical advice actual policy for the sake of achieving a real result. Only with this tz. Machiavelli also considers the question of the moral qualities of the ideal ruler - the sovereign. The real political reality leaves no room for beautiful-hearted dreams: “After all, one who would like to always profess faith in goodness inevitably perishes among so many people who are alien to goodness. For this reason, it is extremely important for a prince who wants to hold on, to learn the ability to be non-virtuous and to use or not use virtues, depending on the extreme importance of stiʼʼ. This does not mean that the sovereign must violate the norms of morality, but he must use them solely for the purpose of strengthening the state.

Since the practice of virtues in practice ʼʼdoes not allow the conditions of human lifeʼʼ, the sovereign should only achieve the reputation of a virtuous ruler and avoid vices, especially those that can deprive him of power, ʼʼnot deviate from good, if possible, but be able to embark on the path of evil, in if it is extremely important ʼʼ. In essence, N. Machiavelli proclaims as a law of political morality the rule ʼʼthe end justifies the meansʼʼ: ʼʼLet them blame his actions, - he says about a politician, - if only they justify the results, and he will always be justified if the results will be good...ʼʼ. At the same time, this goal, according to Machiavelli, is not at all the private personal interest of the ruler, the sovereign, but the “common good”, ĸᴏᴛᴏᴩᴏᴇ he does not think outside the creation of a strong and united national state. If the state appears in the book about the sovereign in the form of one-man rule, then this is not dictated by the author's choice in favor of the monarchy to the detriment of the republic (he substantiated the superiority of the republican form of government in ʼʼDiscourses on the first decade of Titus Liviusʼʼ and never renounced this ), but because the contemporary reality, European and Italian, did not give real prospects for the creation of a state in a republican form. He considered the Republic to be the offspring of the "honesty" and "valor" of the Roman people, while in our time it cannot be reckoned that there could be anything good in such a corrupt country as Italy. The sovereign referred to in the banner of that book is not a hereditary despot monarch, but a ʼʼ new sovereignʼʼ, ᴛ.ᴇ. a person who creates a new state ĸᴏᴛᴏᴩᴏᴇ in the future, after achieving the goal, after the death of the ruler, can also switch to a republican form of government.

The teachings of Polybius on the origin of law and state-va. The theory of political circulation. - concept and types. Classification and features of the category "Teaching of Polybius about the origin of law and state. The theory of political circulation." 2017, 2018.

Polybius (210-128 BC) - Greek thinker, historian, author of the concept of the cycle of forms of government of the state.

Epoch. Loss of independence by the Greek policies. The inclusion of the Greek policies in the Roman Empire.

Biography. A native of Greece, from a noble family. He was interned in Rome among 1000 noble Greeks (300 survived). He turned out to be close to the court of the Roman patrician Scipio. He considered the Roman system to be the most perfect, and the future belongs to Rome.

Main work: "General History".

The logical basis of political doctrine. Historicism. History, Polybius believed, should be universal. It should cover in its presentation the events taking place simultaneously in the West and in the East, be pragmatic, i.e. associated with military and political history. Stoicism. He shared the ideas of the Stoics about the cyclical development of the world.

So, the cycle of forms of government of the state: three correct forms and three incorrect forms of government replace each other.

Every phenomenon is subject to change. Any correct form of state government degenerates. Starting with tyranny, the establishment of each subsequent form is based on the comprehension of previous historical experience. So, after the overthrow of the tyrant, society no longer risks entrusting power to one.

As part of his mental construction of the cycle of forms of government, Polybius determines the period necessary for the transition from one form of government to another, which allows us to predict the moment of transition itself:

The life of several generations of people takes the transition from royal power to tyranny;

The life of one generation of people takes the transition from aristocracy to oligarchy;

The life of three generations of people takes the transition from democracy to ochlocracy (democracy degenerates after three generations).

Polybius sought to find a form of state government that would ensure balance in the state like a floating ship. To do this, you need to combine the three correct forms of government into one. A specific example of a mixed form of government for Polybius was the Roman Republic, which combined:

-> power of consuls - monarchy;

-> the power of the Senate - the aristocracy;

-> power of the people's assembly - democracy.

Unlike Aristotle, for whom the ideal form of government is a mixture of two incorrect (wrong for Aristotle!) Forms of government: oligarchy and democracy, Polybius's ideal form of government is a mixture of three correct forms of government of the state: monarchy, aristocracy, democracy.

The ideal of a mixed form of government of the state of Polybius was consistently adhered to by Mark Tullius Cicero, Thomas More, Niccolò Machiavelli.

The Greek historian Polybius took the Roman state as a new object of political research.

1 Generation - the period of time separating the father from the son; up to the 20th century. - approximately 33 years old; now that figure is leaning towards 25. (Julia D. Philosophical Dictionary. M., 2000. S. 328).

Polybius(210-123 BC) - a prominent Greek historian and politician of the Hellenistic period.

The views of Polybius are reflected in his famous work "History in Forty Books". At the center of Polybius' study is Rome's path to dominance over the entire Mediterranean.

In his attempt at a holistic coverage of historical phenomena, he relies on the Stoic rationalized idea of ​​"fate", according to which it turns out to be a universal world law and reason.

In the context of Polybius' "universal history", "fate" appears as a historical fate, as a synonym for internal patterns of a single historical process.

Polybius is characterized by a statist view of current events, according to which one or another structure of the state plays a decisive role in all human relations.

Polybius depicts the history of the emergence of statehood and the subsequent change of state forms as natural process carried out according to the "law of nature". In total there are, according to Polybius, six basic forms of the state, which, in the order of their natural occurrence and change, occupy the following place within their complete cycle: kingdom (royal power), tyranny, aristocracy, oligarchy, democracy, ochlocracy.

He sees the origins of human cohabitation in the fact that the inherent weakness of all living beings - both animals and people - naturally "encourages them to gather in a homogeneous crowd." And here, according to the indisputable order of nature itself, the one who surpasses all others in his bodily strength and spiritual courage becomes the lord and leader of the crowd.

Over time, the original leader-autocrat imperceptibly and naturally turns, according to the scheme of Polybius, into a king to the extent that "the kingdom of reason replaces the dominance of courage and strength."

Gradually royal power became hereditary. The kings changed their former way of life with its simplicity and concern for their subjects, they began to indulge in excesses beyond measure. As a result of the envy, hatred, discontent and rage of the subjects, "the kingdom turned into a tyranny." Polybius characterizes this state (and form) of the state as the beginning of the decline of power. Tyranny- the time of intrigues against the rulers. Moreover, these intrigues come from noble and courageous people who do not want to endure the arbitrariness of a tyrant. With the support of the people, such noble people overthrow the tyrant and establish aristocracy.

At first, aristocratic rulers are guided in all their affairs by concern for the "common good", but gradually the aristocracy degenerates into oligarchy. Abuse of power, greed, lawless money-grubbing, drunkenness and gluttony reign here.

The successful action of the people against the oligarchs leads to the establishment democracy. During the life of the first generation of the founders of a democratic form of government, equality and freedom are highly valued in the state. But gradually the crowd, accustomed to feeding on other people's handouts, chooses a brave ambitious person (demagogue) as its leader, and itself is removed from public affairs. Democracy degenerates into ochlocracy.

AT In this case, "the state will adorn itself with the noblest name of free popular government, but in fact it will become the worst of states, an ochlocracy."

From point of view circulation of state forms ochlocracy is not only the worst, but also the last stage in the change of forms. Under ochlocracy, the dominance of force is established, and the crowd gathering around the leader commits murders, exiles, redistributions of the land, until it becomes completely savage and again finds itself a ruler and autocrat. The circle of change of state forms is thus closed: the final path of the natural development of state forms is connected with the original one.

Polybius notes the instability inherent in each separate simple form of the state, since it embodies only one principle, which is inevitably destined by its very nature to degenerate into its opposite. Thus, tyranny accompanies the kingdom, and the unbridled domination of force accompanies democracy. Based on this, Polybius concludes that "undoubtedly the most perfect form must be recognized as one in which the features of all the forms named above are combined," i.e., royal power, aristocracy and democracy.

most important in terms of historical science is the political theory of Polybius. This circumstance is explained by the fact that the desire of Polybius to write a pragmatic history useful to the reader certainly required deep generalizations in the field of political history. However, in the form in which the political theory is presented by Polybius, it exceeds the needs of a proper historical work and is a completely independent work.

Polybius sees the basis of any statehood in the weakness inherent in each individual person. As proof of this, Polybius offers the reader a fantastic picture of the death of the human race as a result of an epidemic or natural disaster. The survivors or newly born people unite in groups or herds like this. At the head of such groups are leaders who stand out for their strength and courage. In the world of people, such communities represent, according to Polybius, the oldest form of statehood - autocracy. Characteristic of this stage is the dominance of physical strength and the absence of moral institutions.

The emergence of the moral concepts of beauty and justice, as well as concepts opposite to them, constitutes the second stage in the existence of the state in Polybius' scheme. The form of government at this stage is royal power, royal power is the development of autocracy based on moral concepts that Polybius associates with the formation of a family and family relations. At the heart of family institutions lies the desire of parents to find breadwinners in their children who would take care of them in old age. If someone's son turns out to be ungrateful towards his parents and does not fulfill his duties, this causes indignation and irritation among those people who witnessed parental concerns. These people fear that if they ignore manifestations of filial ingratitude, then a similar fate may befall them. This is where the concept of duty comes from. The concept of duty is the beginning and end of justice.

Following the concept of duty comes the concept of approval. Actions that deserve approval lead to imitation and competition.

At the same time, the concept of censure arises. Approval and censure entails the appearance of the concepts of shameful and good. A ruler who supports people of good moral character and punishes the wicked gets the voluntary support of his subjects. At the stage of royal power, the period of progressive development of statehood ends and a special kind of cyclical development begins, in which simple forms of government alternate.

Polybius notes that the selection by some authors of three simple forms - royal power, aristocracy and democracy is not true, since next to these forms there are three others that are both different and similar to them. Thus, monarchy and tyranny differ from royal power, and these last two forms try to give themselves the appearance of royal power. In contrast, kingship is established by reason, not by fear and force.

Then Polybius moves on to the concepts of oligarchy and aristocracy. The true aristocracy is ruled on an elective basis by the most just and reasonable people. Oligarchy is conceived by Polybius as a form of government based on opposite qualities - the absence of election and the self-interest of people in power. Polybius does not emphasize the principle of noble birth for aristocratic rulers and wealth for oligarchs. The difference between the oligarchy and the aristocracy is, according to Polybius, not social, but moral and ethical.

Polybius defines a good democracy as the predominance of the opinion of the majority. Other signs of a good democracy are of a moral and ethical nature: reverence for the gods, care for parents, respect for elders, and reverence for laws.

Polybius defines ochlocracy as follows: “One cannot consider a democratic device in which the mob can do what they want and think for themselves.”

Having shown the reader six forms of government, Polybius proceeds to describe the cycle of political structures. In this cycle, three good and three bad forms successively replace each other. This sequence is natural from the point of view of Polybius.

In general, the cycle is as follows. If human society perishes as a result of a catastrophe, then the surviving people form a herd, where power belongs to the strongest. With the development of moral concepts, the monarchy acquires the features of an ordered royal power. After a few generations, royal power degenerates into tyranny.

The power of the tyrant and his abuses displease the best citizens, and after the overthrow of the tyranny, an aristocracy is established. In the second generation, the aristocracy turns into an oligarchy. This change happens naturally. When disaffected citizens overthrow the oligarchy, democracy is established. Starting with tyranny, the establishment of each successive form is based on previous historical experience. So, after the overthrow of tyranny, society no longer risks entrusting power to one, and after the overthrow of the oligarchy, it no longer dares to entrust it to a group of people.

With the development of democracy in the third generation, its decay begins. Leaders appear - demagogues who corrupt the people with handouts. Mob power emerges. Enterprising leaders begin to strive for unlimited personal power, and the result is the rule of one, and Polybius does not specify whether this rule is a monarchy or tyranny, and from that moment the cycle begins anew.

All state forms of the cycle carry within themselves the seeds of their decay, just as rust is characteristic of iron, so each individual form passes through several stages of development in its development. According to Polybius, the knowledge of this internal development of individual forms is as important from a pragmatic point of view as the knowledge of the development of the cycle as a whole.

The internal development of individual forms goes through five stages: origin; increase; heyday; change; completion. Polybius obviously borrowed this scheme from the world of flora and fauna, and therefore researchers of the work of the Achaean historian usually call it the "biological law."

Having shown that simple forms of government are unstable and in constant motion, Polybius proceeds to analyze a mixed government, i.e. arrangements where the advantages of the best forms of the state are combined and where, thanks to mutual control, none of them develops beyond measure. This allows the state to remain in a state of equilibrium. A mixed device, according to Polybius, gives the state the opportunity to free itself from the laws of the cycle. However, from further discussion it becomes clear that mixed governments, like simple forms, are subject to the “biological law”. The law of rise and fall, says Polybius, makes it possible to predict future destiny Roman state. Comparing Rome and Carthage, Polybius says that the advantage of Rome during the Second Punic War was that the senate prevailed in Rome at that time, i.e. an aristocratic element, while in Carthage the preponderance was already on the side of democracy. In other words, Carthage, according to Polybius, has already moved further along the path of decline. There is certainly a deep contradiction in the political theory of the Achaean historian, which has long been noticed by researchers of his work.

The theory of mixed government was not an invention of Polybius. It was part of the general political theory of antiquity, aimed at finding conditions for the full existence of the individual in the state and at achieving a stable state system.

In the way Polybius considers the topic of a mixed state system, there are features that, on the one hand, connect him with the previous tradition, and on the other hand, distinguish him as an innovator.

The innovation of Polybius lies primarily in the choice of the material he considers: the main object of application of the theory for him is the Roman state, which was not previously involved with Greek socio-political thought for this purpose.

As for Polybius' assessment of the mixed state system, here his views are quite traditional. To make sure that he treats mixed polities in the highest degree positively, a cursory glance at his descriptions of the political structure of Crete, Sparta and Carthage - states traditionally considered among mixed polities, is enough.

The description of the state structure of Crete, Sparta and Carthage was not an end in itself for Polybius: according to his plan, it was supposed to allow him to more deeply reveal the mechanisms of the functioning of a mixed constitution and give him material for comparison with political system Roman state. The main part of the political treatise of Polybius is devoted to the description of the Roman state structure.

The Romans, according to Polybius, had three pure forms of power. All functions were distributed among the individual authorities so evenly that it is impossible, according to Polybius, to determine what kind of device - monarchical, aristocratic or democratic - exists in Rome.

Polybius shows the reader what functions belong to each form of government: the consuls embody the monarchical element; the senate is an aristocratic element; the people are the democratic element. Polybius begins his analysis of individual magistracies with the consuls. The consuls, when they are present in Rome, are subject to all the people and all officials, with the exception of the tribunes of the people; they report to the senate on all matters and introduce embassies to the senate, supervise the execution of decrees, convene a people's assembly, make proposals, execute decrees, have unlimited power in military affairs, can punish any person in a military camp and spend public funds as they see fit.

The Senate, first of all, disposes of the state treasury; it has jurisdiction over all crimes committed in Italian territory; he is in charge of sending embassies to countries outside of Italy; resolves issues of war and peace, receives embassies. Polybius emphasizes that the people do not take any part in any of the listed events.

Understanding that the impression may arise that nothing significant remains for the lot of the people, the author hastens to warn this false opinion. He draws the reader's attention to the fact that the people have a very strong influence on the life of the Roman state, since it is in their hands that the right to reward and punish lies.

From the point of view of Polybius, the whole life of people is determined by these incentives. The prerogative of the people is the imposition of the death sentence and the imposition of monetary fines, the resolution of issues of war and peace, the ratification of concluded treaties and alliances.

Polybius then proceeds to consider how all three forms of government coexist in Rome. The purpose of Polybius is to show that there is a balance between these three forms, since they, competing with each other, mutually balance each other.

According to Polybius, at the heart of any state are not only laws, but also customs. That is why so great attention he devotes to the consideration of extra-constitutional elements in the life of the Roman state. He dwells in particular detail on the system of education of the younger generation, the system of rewards and punishments, on religious institutions and, of course, on the military system.

The main goal of Roman education, as Polybius saw it, was the development of civil and military prowess. The system of Roman education is based on honoring the memory of famous ancestors. It finds its expression in the funeral ceremonies of citizens who have merits before the state. These ceremonies should arouse civic zeal, not only in the descendants of the man in question, but in all Romans.

The system of rewards and punishments that existed in Rome is fully approved by Polybius. Polybius is an opponent of any leveling principle. If rewards and punishments are distributed incorrectly, they lose their meaning. Those states where these principles are not respected cannot succeed. This thought of Polybius is not his own invention. Already Plato in the "Laws" says that "the state, as it seems, if only it intends to exist and prosper, it must necessarily correctly distribute honors and punishments." Polybius emphasizes this principle with particular force and makes it an important part of his political theory. As a politician and military man, Polybius must have been well aware of the effects of rewards and punishments on people's behavior.

Polybius sees a great advantage of the Roman state in its religious institutions. The Romans founded public life fear of the gods, which is condemned by other peoples. This fear, says Polybius, is needed for the sake of the crowd. Such religious institutions from the point of view of the historian are a manifestation of rationalism and realism. The people are full of frivolity, unlawful aspirations, senseless anger and violence. It is possible to keep him from all this only by mysterious fear and rituals. If it were possible to form a state out of wise men alone, then there would be no need for such means. Those people who seek to expel these ideas from the state system are doing wrong, which already happened among many Hellenic peoples. The Romans, on the contrary, carefully preserve these notions, and therefore the magistrates are trusted by them: for the fear of the gods makes them keep their oaths.

As a professional military man, Polybius pays great attention to military affairs in Rome. A significant part of the chapters of Book VI (19-42, despite the fact that the entire Book VI in its current form is 58 chapters) is devoted to the description of the structure of the Roman army, its armament and construction.

Polybius is very positive about the Roman military structure. It was precisely because this structure was strong and perfect that Rome, unlike Sparta, had the ability to wage successful wars of conquest. The ability to expand, or the "power factor", as the Dutch researcher G. Aalders called this property, Polybius valued very highly. This is the difference between his theory and the theories of Plato and Aristotle, who considered military forces only as a means of protecting the policy. In the military system of Rome, Polybius sees an instrument of the highest historical power, transforming the world and turning it into a single whole.

As we can see, Polybius gives the highest appraisal to all Roman institutions. He strives with all his might to prove to the Greek reader that Rome is the best of all states, and that therefore the Roman conquest is good. In this context, the theory of mixed government is only one of the means to achieve this goal. In connection with the highest appreciation of mixed polity in the Greek tradition, it was precisely this means that Polybius pinned his greatest hopes on.

Despite the fact that Polybius speaks of equal shares of power in all three components of the constitution, the power attributed by him to the senate in the first part of the exposition turns out to be less than that of the people and consuls. In reality, it was otherwise: in another place, Polybius himself says that by the beginning of the Second Punic War, the power of the Senate in Rome was predominant.

Polybius says nothing about how the senate is controlled by the consuls. It is also perplexing that Polybius makes the definition of the monarchical or oligarchic nature of power dependent on the presence in Rome of the heads of the executive branch.

The power of the consuls over the people, in the image of Polybius, is not direct, but indirect, since the people are forced to fear the consuls. If a person in Rome shows disobedience to the consuls, then, being in the army, he can be punished by them for this. This state of affairs was impossible, since such punishments could not be carried out on the basis of the law. Moreover, it would violate the principle of rewards and punishments that Polybius values ​​so much in the Roman constitution.

Polybius says nothing about the control of the people at his official meetings. We are talking only about the individual dependence of the majority of the people on the good will of the senate and consuls. On the contrary, the senate may be deprived of its powers by the popular assembly. Thus, it turns out that the people have direct political rights in relation to the Senate, while the Senate can exert only indirect political and economic pressure on the people. Polybius reports the economic rights of the senate in relation to the people, but these rights are not political.

The desire of Polybius to explain the Roman state institutions inevitably led him to a misinterpretation of the consular and senatorial powers. Desiring to see in the consuls a monarchical element, Polybius lost sight of the essential difference between the essence of monarchical power and consular powers. The power of the king is not limited to his state functions, while the power of the consuls is a derivative of their functions.

Another significant mistake of Polybius was the desire to see an aristocratic element in the Roman Senate. The Senate, indeed, was the body through which the aristocracy exercised its power, but it was not identical with the aristocracy because it did not include all adult men from aristocratic families. In addition, the Senate included a sufficient number of plebeians.

Trying to oppose the monarchical and aristocratic elements to each other, Polybius ignored the fact that the consuls and the senate were one large group of magistrates, and the contradictions that arose at different times between individual consuls and the senate were not an expression of the competition of authorities, but the desire of individual ambitious leaders to occupy an extraconstitutional position in the state.

As we can see, the picture of the functioning of the Roman mixed constitution, depicted by Polybius, is full of inaccuracies and internal contradictions. The application of the concept of mixed polity to Rome is only a means to glorify the Roman state.

Returning to the problem of the inconsistency of the political theory of Polybius, let us say the following. There is no doubt that from the very time when Polybius first appeared in Rome, he had a critical assessment of the state of the Roman state. Already at the very beginning of his work, he writes that by the time of the Second Punic War, Rome and Carthage were at the highest point of their development and, therefore, Polybius had to consider his era as a time of decline. The achievement of world domination by Rome was facilitated by the wars of Rome in Greece, which followed the Second Punic War. In full, as Polybius writes, the corruption of morals made itself felt after the III Macedonian War. It was at this time that he became a hostage in Rome. Corruption of morals caused great agitation in the public opinion of Rome, and controversy about it by the time Polybius arrived in Rome had become commonplace. In his "History" Polybius tries to abstract from the signs of his time and depict the structure and customs of Rome as they were at the time of its heyday, more than half a century away from Polybius. Polybius did not fully succeed in realizing this intention. And living reality constantly burst into the pages of his work. Therefore, contradictions exist not between Polybius' ideas about the stability of a mixed constitution, on the one hand, and the recognition of the inevitability of its decline, on the other, but between the theoretical conviction that a mixed state structure- this is the best remedy maintaining political stability, and the actual recognition that the Roman state, which, according to Polybius, is a mixed polity, is on the verge of a crisis.

Neither in Book VI, nor outside it, is there anything that could help reveal Polybius' ideas about both the mechanism for the formation of a mixed polity and the mechanism for its decline, except, as already mentioned above, that in Rome, and in Carthage, Polybius sees the danger of strengthening the democratic element, which leads to a violation of the internal balance. If Polybius deepened his analysis, he would have to decide for himself the question of why a mixed constitution, the main advantage of which, in his opinion, is the ability to maintain stability in the state, is not able to prevent the state from slipping towards the democratic element and why the predominance of precisely the democratic element is fatal. Such an in-depth analysis would take Polybius too far down the path of theorizing. In addition, with all this, he could cast doubt on his entire scheme. Political instinct told Polybius that the decline and death of Rome were inevitable. In an effort to find an explanation for this premonition, Polybius, perhaps imperceptibly for himself, was influenced by his own theory of simple forms and transferred the action of the "biological law" to the functioning of a mixed state system.

Polybius (210-128 BC) - Greek thinker, historian, author of "General History".

Main work: "General History" in 40 books (most of it was written after 146 BC, after the subjugation of Hellas to the Romans).

The teachings of the Stoics had a noticeable influence on the views of Polybius (210-123 BC), a prominent Greek historian and politician of the Hellenistic period.

The views of Polybius are reflected in his famous work "History in Forty Books". At the center of Polybius' study is Rome's path to dominance over the entire Mediterranean.

Polybius (with reference to Plato and some of his other predecessors) portrays the history of the emergence of statehood and the subsequent change in state forms as a natural process that takes place according to the "law of nature." In total, according to Polybius, there are six main forms of the state, which, in the order of their natural occurrence and change, occupy the following place within their complete cycle: kingdom (royal power), tyranny, aristocracy, oligarchy, democracy, ochlocracy.

From the point of view of the circulation of state forms, ochlocracy is not only the worst, but also the last step in the change of forms. Under ochlocracy, “the dominance of force is established, and the crowd gathering around the leader commits murders, exiles, redistributions of the land, until it completely runs wild and again finds itself a ruler and autocrat.” The circle of change of state forms is thus closed: the final path of the natural development of state forms is connected with the original one.

Polybius notes the instability inherent in each individual simple form, since it embodies only one principle, which is inevitably destined by nature to degenerate into its opposite. Thus, tyranny accompanies the kingdom, and the unbridled domination of force accompanies democracy. Based on this. Polybius concludes that "undoubtedly the most perfect form must be recognized as one in which the features of all the forms named above are combined," that is, royal power, aristocracy and democracy.

Polybius, who was greatly influenced by the relevant ideas of Aristotle, sees the main advantage of such a mixed form of government in ensuring the proper stability of the state, preventing the transition to perverted forms of government. The first to understand this and organize a mixed government was, according to Polybius, the Lacedaemon legislator Lycurgus.

Concerning the contemporary state of affairs, Polybius notes that the Roman state is distinguished by the best structure. In this regard, he analyzes the powers of the "three powers" in the Roman state - the power of the consuls, the senate and the people, expressing respectively the royal, aristocratic and democratic principles.

10. Features of the development of ancient Roman political and legal thought.

The history of Ancient Rome includes three periods:

1) royal (754-510 BC);

2) Republican (509-28 BC);

3) imperial (27 BC-47b AD).

In the II century. BC, after the conquest of the Greek cities by the Romans, the political and legal teachings of Greece had a strong influence on the formation of the views of Roman thinkers. The heyday of Roman political and legal thought falls on the republican and imperial periods. In the era of the republic, Cicero creates his works and the creative activity of Roman lawyers begins, which reaches its peak in the imperial period. In the 1st century AD Christianity was born, and already in the IV century. it becomes the state religion of the Roman Empire. With the advent of Christianity, the subject of political and legal research changes, and the relationship between church and state becomes the main problem.

The political and legal teachings of Ancient Rome had much in common with the political and legal teachings of ancient Greece. The similarity of the political thought of the ancient Greeks and Romans was determined not only by the fact that the ideological concepts in these countries were formed on the basis of the same type of socio-economic relations, but also by the deep continuity in the development of their culture. Ancient Rome, which for a long time remained on the periphery of the ancient world, was forced to pull itself up to the level of the advanced policies of Greece, to adopt its culture. The conquest of Greek cities by Rome marked the beginning of the Hellenization of Roman society, i.e. widespread Greek culture among the Romans. In the era of the empire, these processes were intertwined with the processes of mutual influence of Greek, Eastern and proper Roman cultural traditions.

Political and legal doctrines in Ancient Rome formed on the basis of philosophical trends that were transferred from Greece. In their instructions on philosophy, Roman thinkers usually reproduced Greek teachings, changing and adapting them in relation to Roman conditions. When developing political concepts, Roman authors relied on ideas borrowed from Greek sources about the forms of the state, about the relationship between law and justice, about natural law, etc.

The novelty and originality of the political views of Roman thinkers lay in the fact that they put forward ideas that correspond to the relations of a mature slave-owning society. Two circles of ideological ideas can be distinguished, in which the originality of Roman political and legal thought was most clearly manifested.

The first of these should include changes in political theory due to the development of relations between private property and slavery. The emergence of large landed property and the concentration of wealth, accompanied by the deepening of social conflicts, made the ruling classes face the need to strengthen the legal protection of property relations. Awareness of this need aroused in them an increased interest in legal means of consolidating their dominance, gave rise to the idea that the state serves to protect property and rests on the consent of citizens regarding law. In the works of supporters of the slave-owning nobility, definitions of a slave as a thing, as a "speaking tool", etc., become commonplace.

The result of the practical activities of lawyers in the interpretation of laws was the separation of jurisprudence into an independent branch of knowledge. Over time, it acquires the status of a source of law. In the writings of Roman jurists, the institutions and norms of the current law, including the legal status of free and slaves, the classification of property transactions, the content of property rights and the order of inheritance, receive a detailed justification.

The second circle should include changes in political theory, reflecting the restructuring of the state mechanism in the era of empire, when the republican form of government was replaced by a pro-monarchist regime. During this period, the ruling elite abandoned the political ideals that the polis aristocracy followed. The official ideology of the Roman Empire is characterized by the ideas of cosmopolitanism, the world domination of the Romans, as well as the concept of unlimited imperial power and the state cult of the ruling emperor.

The philosophy of the Stoics had a significant influence on the ideology of Roman society. Her followers (Seneca, Marcus Aurelius) talked about the "spiritual equality" of all people, including masters and slaves, their impotence to change fate, the need to obey the world law. The mystical aspects and pessimism of the teachings of the Stoics intensified with the growing crisis of the slave system. Many of the ideas of Stoicism were adopted by Christianity, an ideological movement that originated among the social lower classes of the Roman Empire. During the II-III centuries. the Christian religion gradually lost its original rebellious spirit, and in the 4th century. was elevated to the rank of the official ideology of the Roman state.

11. Cicero.

Mark Tullius Cicero (106-43 BC) is a famous Roman orator, lawyer, statesman and thinker. In his extensive work, considerable attention is paid to the problems of state and law. These issues are specially covered in his works "On the State" and "On the Laws".

Cicero defines the state (respublica) as a matter, the property of the people (res populi). At the same time, he emphasizes that "the people are not any combination of people gathered together in any way, but a combination of many people connected by agreement in matters of law and common interests." Thus, the state in the interpretation of Cicero appears not only as an expression of the common interest of all its free members, which was also characteristic of ancient Greek concepts, but at the same time also as an agreed legal communication of these members, as a certain legal formation, "general legal order". Thus, Cicero stands at the origins of that legalization of the concept of the state, which subsequently had many adherents, up to modern supporters of the idea of ​​a "lawful state".

Cicero saw the main reason for the origin of the state not so much in the weakness of people and their fear (the point of view of Polybius), but in their innate need to live together. Sharing the position of Aristotle on this issue, Cicero rejected the ideas that were widespread in his time about the contractual nature of the emergence of the state.

The influence of Aristotle is also noticeable in Cicero's interpretation of the role of the family as the initial unit of society, from which the state gradually and naturally arises. He noted the initial connection between the state and property and shared the position of the Stoic Panetius that the reason for the formation of the state is the protection of property. Violation of the inviolability of private and public property Cicero characterizes as a desecration and violation of justice and law.

The emergence of the state (also law) is not according to the opinion and arbitrariness of people, but according to the universal requirements of nature, including according to the dictates of human nature, in the interpretation of Cicero means that by their nature and essence they (the state and law) are divine in nature and based on universal reason and justice. The study of all nature, Cicero noted, leads to the understanding that "this whole world is ruled by reason." This provision, formulated by the ancient Greek philosopher Anaxagoras, is used by Cicero to substantiate his understanding of "nature" as a universal source of reasonable and just institutions and actions of people, conditioned and permeated by the divine will. It is due to the fact that people are endowed by nature with the "seeds" of reason and justice and, therefore, they can comprehend the divine principles, the very emergence of ordered human communication, virtues, state and law became possible.

Reason is the highest and best part of the soul, the "royal empire", curbing all base feelings and passions in a person (greed, thirst for power and glory, etc.), "rebellion of the soul". Therefore, Cicero wrote, "under the dominance of wisdom, there is no place for passions, or for anger, or for rash acts."

In line with the traditions of ancient Greek thought, Cicero paid great attention to the analysis of various forms of government, the emergence of some forms from others, the "cycle" of these forms, the search for the "best" form, etc.

Depending on the number of rulers, he distinguished three simple forms of government: royal power, the power of optimates (aristocracy) and popular power (democracy). “And so, when the supreme power is in the hands of one person, we call this one the king, and such a state system is royal power. When it is in the hands of the elected, they say that this civil community is controlled by the will of the optimates. because it is called so) is such a community in which everything is in the hands of the people.

All these simple forms (or types) of the state are not perfect and not the best, but, according to Cicero, they are still tolerable and can be quite strong, if only those foundations and ties (including legal ones) that first firmly united people are preserved. by virtue of their common participation in the creation of the state. Each of these forms has its own advantages and disadvantages. In the event that there was a choice among them, preference is given to royal power, and democracy is put in last place. "With their good will," writes Cicero, "we are attracted to us by kings, by wisdom - by optimists, by freedom - by peoples." The listed advantages of different forms of government, according to Cicero, can and should be in their totality, interconnection and unity presented in a mixed (and therefore the best) form of the state. In simple forms of the state, these advantages are presented one-sidedly, which causes the shortcomings of simple forms, leading to a struggle between different sections of the population for power, to a change in forms of power, to their degeneration into "wrong" forms. To prevent such a degeneration of statehood, according to Cicero, is possible only under conditions of the best (i.e. mixed) type of state structure, formed by uniform mixing positive properties three simple forms of government. “For,” he emphasized, “it is desirable that there should be something eminent and regal in the state, that one part of the power be given and handed over to the authority of the first people, and some matters be left to the judgment and will of the people.” As the most important advantages of such a political system, Cicero noted the strength of the state and the legal equality of its citizens.

As a way to a mixed form of government, Cicero (following Polybius) interpreted the evolution of Roman statehood from the original royal power to the senatorial republic. At the same time, he saw an analogy of royal power in the powers of magistrates (and, above all, consuls), the power of optimates - in the powers of the Senate, people's power - in the powers of people's assemblies and people's tribunes. Cicero considered his concept of the best (mixed) form of the state, in contrast to the Platonic projects of an ideal state, to be realistically feasible, implying the practice of the Roman republican statehood at the best time of its existence ("under the ancestors"). The Platonic state is, rather, not a reality, but only a desire, it is "not the kind that could exist, but the kind in which it would be possible to see the reasonable foundations of citizenship."

Much attention in the work of Cicero is given to the praise of the virtues of a true statesman and an ideal citizen. A wise statesman, according to Cicero, must see and foresee the ways and turns in the affairs of the state in order to prevent an unfavorable course of events (change of forms of government in a detrimental direction, deviation from the common good and justice) and in every possible way contribute to the strength and durability of the state as a "general legal order" .

The person in charge of the affairs of the state must be wise, just, temperate and eloquent. It must, in addition, be versed in the doctrines of the state and "possess the fundamentals of law, without knowledge of which no one can be just."

In that extreme case, when the very well-being of the state as a common cause of the people is called into question, with the consent of the latter, a true statesman, according to Cicero, must "as a dictator establish order in the state." Here the politician acts not for his own selfish purposes, but in the general interests as the savior of the republic.

The duties of an ideal citizen, according to Cicero, are due to the need to follow such virtues as the knowledge of truth, justice, greatness of spirit and decency. A citizen not only must not harm others, violate other people's property or commit other injustices, but, in addition, he is obliged to help the victims of injustice and work for the common good. Praising the political activity of citizens in every possible way, Cicero emphasized that "there are no private individuals in the defense of the freedom of citizens." He also noted the duty of a citizen to defend the fatherland as a warrior.

Appeals to nature, to its reason and laws are also characteristic of the legal theory of Cicero. The basis of law is the inherent justice of nature. Moreover, this justice is understood by Cicero as an eternal, unchanging and inalienable property of both nature as a whole and human nature. Consequently, under "nature" as a source of justice and law (law by nature, natural law), in his teaching, he means the entire cosmos, the entire physical and social world surrounding a person, forms of human communication and community life, as well as human existence itself, embracing it. body and soul, outer and inner life. All this "nature" (by virtue of its divine principle) has reason and regularity, a certain order. It is this spiritual property of nature (its rational-spiritual aspect), and not at all its objective and bodily-material composition, which occupies a subordinate and secondary place (like the body in relation to the soul, the sensual parts of the soul in relation to its rational part), and is , according to Cicero, the true source and bearer of natural law.

Cicero distinguishes between natural and positive law. He gives the following detailed definition of natural law: "True law is a reasonable provision corresponding to nature, extending to all people, constant, eternal, which calls for the performance of duty, ordering; forbidding, scares away from crime; it, however, is nothing when it is it is not necessary, does not order honest people and does not forbid them, and does not influence the dishonest, ordering or forbidding them.It is blasphemy to propose a complete or partial abolition of such a law; We cannot free ourselves from this law either by a decree of the Senate or by a decree of the people."

This "true law" is the same everywhere and always, and "one eternal and unchanging law will apply to all peoples at any time, and there will be one common, as it were, mentor and ruler of all people - God, creator, judge, author of the law ".

In his doctrine of natural law, Cicero was greatly influenced by the corresponding ideas of Plato, Aristotle, and a number of Stoics. This influence is also noticeable where he sees the essence and meaning of justice (and, therefore, the basic principle of natural law) in the fact that "it renders to each his own and preserves equality between them."

Justice, according to Cicero, requires not harming others or violating the property of others. “The first requirement of justice,” he noted, “is that no one harms anyone, unless he is provoked to do so by injustice, and then that everyone should use common property as common, and private property as their own.” From these positions, he rejected such actions of the Roman populace as the cassation of debts, the infringement of large landowners and the distribution of money and property taken from the rightful owners to his adherents and the plebs.

Natural law (the highest, true law), according to Cicero, arose "earlier than any written law, or rather, before any state was founded at all." The state itself (as a "general legal order") with its institutions and laws is, in its essence, the embodiment of what is by nature justice and law.

From this follows the requirement that human institutions (political institutions, written laws, etc.) correspond to justice and law, because the latter do not depend on the opinion and discretion of people.

Law is established by nature, not by human decisions and decrees. “If rights were established by the decrees of the peoples, by the decisions of the first men, by the sentences of the judges,” wrote Cicero, “then there would be the right to rob, the right to commit adultery, the right to make false wills, if these rights could be approved by a vote or decision of the crowd.” The law established by people cannot violate the order in nature and create right from lawlessness or good from evil, honest from shameful.

The correspondence or inconsistency of human laws with nature (and natural law) acts as a criterion and measure of their justice or injustice. As an example of laws that are contrary to justice and law, Cicero pointed, in particular, to the laws of thirty tyrants who ruled in Athens in 404-403. BC, as well as the Roman law of 82 BC, according to which all the actions of Sulla as consul and proconsul were approved and he was granted unlimited powers, including the right of life and death in relation to Roman citizens. Such unjust laws, like many other "pernicious decrees of the peoples", according to Cicero, "deserve the name of the law no more than the decisions taken by common consent of the robbers."

12. Roman lawyers.

In ancient Rome, the occupation of law was originally the work of the pontiffs, one of the colleges of priests. Every year, one of the pontiffs communicated to private individuals the position of the collegium on legal issues. Around 300 BC e. jurisprudence is freed from the pontiffs. The beginning of secular jurisprudence, according to legend, is associated with the name of Gnaeus Flavius.

The activities of lawyers to resolve legal issues included:

1) respondere - answers to legal questions of individuals,

2) cavere - communication of the necessary formulas and assistance in concluding transactions,

3) agere - communication of formulas for conducting a case in court.

Moreover, lawyers formalized their opinion on the case in the form of a written appeal to the judges or in the form of a protocol that contained a record of the oral consultation and was drawn up in front of witnesses. Based on the sources of the law in force (customary law, the Laws of the XP tables, the legislation of popular assemblies, the edicts of the magistrates, the senatus councils and the constitutions of the emperors), lawyers, when analyzing certain cases, interpreted the existing legal norms in the spirit of their compliance with the requirements of justice (aequitas) and in case of conflicts often changed the old norm to take into account new ideas about justice and just law (aequum ius).

Such a law-transforming (and often law-forming) interpretation of lawyers was motivated by the search for such a formulation of the prescription that a fair legislator himself would give in the changed conditions. The acceptance by legal practice of a new interpretation (first of all, by virtue of its reasoning and the authority of its author) meant the recognition of its content as a new rule of law, namely the norm of ius civile (civil law), which also covered, in addition, customary law, the legislation of people's assemblies , praetor law. The law-transforming activity of lawyers ensured the interconnection of various sources of Roman law and contributed to a combination of stability and flexibility in its further development and renewal.

Roman jurisprudence reached its heyday in the last period of the republic, and especially in the first two and a half centuries of the empire. Already the first emperors sought to enlist the support of influential jurisprudence and, if possible, subordinate it to their interests. For this purpose, eminent jurists had already since the reign of Augustus received a special right to give answers on behalf of the emperor (ius respondendi). Such answers enjoyed great authority and gradually (as the power of the princeps, who at first was not a legislator) strengthened, became binding on judges, and in the 3rd century. individual provisions of classical lawyers were referred to as the text of the law itself.

From the second half of the 3rd c. the decline of Roman jurisprudence is outlined, largely due to the fact that the acquisition of legislative power by the emperors stopped the law-making activities of lawyers. From the time of Diocletian, emperors, having received unlimited legislative power, ceased to give jurists ius respondendi. True, the provisions of the jurists of the classical period retained their authority in the new conditions.

Of the large number of well-known jurists of the classical period, the most prominent were Gaius (II century), Papinian (II-III centuries), Paul (II-III centuries), Ulpian (II-III centuries) and Modestin (II-III centuries). centuries). By a special law of Valentinian III (426) on the citation of jurists, the provisions of these five jurists were given legal force. In case of disagreement between their opinions, the dispute was resolved by the majority, and if this was not possible, then preference was given to the opinion of Papinian. The mentioned law recognized the significance of the provisions and other jurists who were quoted in the writings of the named five jurists. These jurists cited primarily included Sabinus, Scaevola, Julian, and Marcellus.

The writings of Roman jurists became an important part of Justinian's codification (Corpus iuris civilis), which included: Marcian); 2) Digests (or Pandects), i.e. a collection of excerpts from the writings of 38 Roman lawyers (from the 1st century BC to the 4th century AD), and extracts from the works of five famous lawyers amount to more than 70 % of all text Digest; 3) Code of Justinian (collection of imperial constitutions). All this great codification work, including the compilation of the Digest, was supervised by an outstanding jurist of the 6th century. Tribonian. It should be borne in mind that, above all, it was the collection of texts of Roman jurists that provided the codification of Justinian with an outstanding place in the history of law.

The activities of Roman lawyers were primarily aimed at meeting the needs of legal practice and adapting the existing rules of law to the changing needs of legal communication. At the same time, in their comments and responses to specific cases, as well as in essays of an educational profile (institutions, etc.), they also developed a number of general theoretical provisions. True, Roman lawyers approached the formulation of general legal principles and definitions very carefully, preferring the detailed and filigree development of specific legal issues and only on this basis making certain generalizations. Hence the well-known saying "every definition is dangerous", going back to the position of a lawyer in the 1st-2nd centuries. Yavolena: "In civil law, any definition is fraught with danger, because there are few cases when it cannot be overturned."

Such caution in wording general provisions(rules, regulae) was also dictated by the fact that such generalizations of lawyers (rules) acquired the meaning of general legal provisions (legal norms, rules and principles). Characteristic in. In this regard, Paul's position: "A rule is a short expression of what is; law is not derived from a rule, but a rule is derived from an existing law."

The division of law into private and public dates back to the Roman jurists. Ulpian, in his now classic division of all law into public (the law that "refers to the position of the Roman state") and private (the law that "refers to the benefit of individuals") noted that, in turn, "private law is divided into three parts, for it is composed of natural prescriptions, of (prescriptions) of peoples, or (prescriptions) of the civil. The named "parts" are not isolated and autonomous sections of law, but rather interacting and mutually influencing components and properties theoretically distinguished in the structure of actually acting law as a whole.

The interpenetration of various constituent moments ("parts") of law, the impossibility of their "pure" isolation from law as a whole and sharp isolation was also emphasized by Ulpian himself. “Civil law,” he noted, “is not completely separated from natural law or the law of peoples. So, if we add something to common law or reduce it, then we create our own law, that is, civil law. Thus, our law is either written or unwritten, as with the Greeks; of the laws, some are written, others are not written.

The requirements and properties of natural law permeate not only civil law, but also the law of peoples (ius gentium), which meant the law common to all peoples, and also partly the law international communication. “The law of peoples,” Ulpian wrote, “is that which the peoples of mankind use; one can easily understand its difference from natural law: the latter is common to all living beings, and the former is only for people in their relations with each other.”

This is also the case according to the views of the jurist Gaius. “All peoples governed by laws and customs,” he wrote, “enjoy partly their own, partly the right common to all people.” Moreover, this common law, which he calls the law of peoples, is fundamentally and essentially natural law - "the law that natural reason has established between all people."

The idea of ​​the interconnection and unity of various constituent moments and properties inherent in law in general; theoretically more accurate and clearer than Ulpian and Guy, the lawyer Pavel expressed. “The word “right,” he explained, “is used in several senses: firstly, “right” means that which is always just and good, which is natural law. In another sense, “right” is that which is useful to all or to many in any state, what is civil law. It is no less correct in our state to call "right" ius honorarium (praetorian right)."

It is important to keep in mind that all these different "meanings" are simultaneously present in the general concept of "law" (ius). The inclusion by Roman lawyers of natural law in the total scope of the concept of law in general, with all the ensuing consequences, corresponded to their initial ideas about law as a just phenomenon. “The student of law,” Ulpian emphasizes, “should first of all know where the word ius (right) comes from; it got its name from iustitia (truth, justice), for, as Celsus excellently defines, law is ars (art, practical knowledge and skill) boni (goodness) and aequi (equality and justice)."

The concept of aequi (and aequitas) plays a significant role in the legal understanding of Roman lawyers and is used by them, in particular, to contrast aequum ius (equal and fair law) ius iniquum (law that does not meet the requirements of equal justice). Aequitas, being a concretization and expression of natural justice, served as a scale for adjusting and evaluating the law in force, a guiding reference point in lawmaking (lawyers, praetors, the Senate, and other subjects of lawmaking), a maxim in the interpretation and application of law.

"Iustitia (truth, justice), - noted Ulpian, - is a constant and uninterrupted will to give everyone their right." From such a general understanding of legal justice, Ulpian derived the following, more detailed "prescriptions of law": "to live honestly, not to harm another, to give everyone what belongs to him." In accordance with this, he defined jurisprudence as "the knowledge of divine and human affairs, the knowledge of the just and the unjust."

In general, the legal understanding of ancient Roman lawyers is characterized by a constant desire to emphasize not only the axiological (value) features of law, but also the qualities of necessity and obligation inherent in the concept of law. Moreover, both of these aspects are closely linked into a certain unity of fair law.

Indicative in this respect, in particular, is the following provision of Paul: "It is said that the praetor expresses the right, even if he decides unjustly: this (word) refers not to what the praetor did, but to what he ought to have done."

These requirements, according to the views of ancient Roman jurists, apply to all sources of law, c. including the law (lex). Thus, Papinian gives the following definition of the law: "The law is a prescription, the decision of wise men, the curbing of crimes committed intentionally or out of ignorance, the general vow of the state." In a more abstract language of later time, we can say that the above definition of the law affects, in particular, such features as its general imperative, reasonableness, sociality (anti-crime), nationwide character (both in the sense of endowing the law with state protection, and in the sense of the obligation to comply with law and its sanctity for the state itself). Similar characteristics of the law are also found in Marcian, who agrees with the following definition of the Greek orator Demosthenes: "The law is something that all people must obey for various reasons, but mainly because every law is a thought (invention) and a gift of God, the decision of the wise people and the curbing of crimes committed both willingly and unwillingly, the general agreement of the community, according to which those who are in it should live.

The justice of law is also implied where Roman lawyers are engaged in legal and technical analysis of the law and other sources of law. So, for example, when the jurist Modestin writes that "the action (force) of law: to command, forbid, punish" *, then it is assumed that such formalizations and classifications of legal imperativeness make sense (and force) only insofar as we are talking about imperatives (decrees) of precisely law, i.e., just law. This fundamental circumstance was clearly emphasized by the Roman jurists themselves. Thus, Paul wrote: "What is perceived contrary to the principles of law cannot be extended to consequences." In other words, what is contrary to the principles (beginnings) of law has no legal force.

Julian also developed the same idea: "What is established contrary to the meaning of law, we cannot follow as a legal rule." These ideas receive their further concretization in the rules and methods of interpreting the norms of law, which were developed in detail by Roman lawyers, designed to ensure an adequate establishment of the meaning of the source being interpreted.

In the field of public law, Roman lawyers developed the legal status of shrines and priests, the powers of state bodies and officials, the concepts of power (imperium), citizenship, and a number of other institutions of state and administrative law.

In the transition from a republic to a monarchy, Roman jurists put a lot of effort into legalizing the regime of Caesarism and substantiating the emperors' claims to legislative power.

Many of the lawyers were trusted advisers to the emperors and held high positions in the state. Some of them, however, themselves became victims of the arbitrariness of the authorities. So, Ulpian, who, as prefect of the praetorian, tried to fight the arbitrariness and licentiousness of the Praetorians, after a series of assassination attempts was killed by them in 228 in the presence of Emperor Alexander Severus. A little earlier, in 212, under Caracalla, Papinian, who was also the prefect of the praetorium, was executed. Caracalla, having killed his brother Geta, demanded that the famous lawyer justify his actions. Papinian refused this, saying: "Justifying murder is no easier than committing it."

Roman lawyers paid the main attention to the development of problems of private law, and above all civil law. The jurist Gaius interpreted civil law as a right established (in writing or orally) among one or another people (for example, among the Romans, Greeks, etc.). This interpretation is supplemented by Papinian by indicating the sources of civil law - laws, plebiscites, senatus-consultants, decrees of princeps, provisions of legal scholars. Praetor law is characterized by him as a source of "addition and correction of civil law". In the same spirit, Marcian called praetor law "the living voice of civil law."

In the field of civil law, Roman lawyers worked out in detail the issues of property, family, wills, contracts, legal statuses of the individual, etc. They are especially thorough in their coverage of property relations from the standpoint of protecting the interests of a private owner.

The objects of property, along with animals and other things, are, according to Roman law and the teachings of jurists, also slaves.

“The most important difference in the legal status of persons,” Gaius wrote, “is that people are either free or slaves. Also, some of the free are freely born, others are freedmen.” Ulpian gives the same division, adding that it arose by the law of peoples, since "by natural 64

All are born free."

The law of peoples, as understood by Roman lawyers, included both the rules of interstate relations and the norms of property and other contractual relations between Roman citizens and non-Romans (Peregrines).

On the range of issues that fell under the law of peoples, Hermogenian wrote: “This law of peoples introduced war, the division of peoples, the foundation of kingdoms, the division of property, the establishment of borders, fields, the construction of buildings, trade, purchase and sale, hiring, obligations were established, with the exception of those introduced by civil law".

The law of peoples contained a number of norms of an international legal nature (the term "international law" itself was absent among the Romans). According to the law of peoples, the sea is "common to all".

The work of Roman lawyers had a great influence on the subsequent development of legal thought. This is due both to the high legal culture of Roman jurisprudence (the thoroughness and reasoning of the analysis, the clarity of the wording, the vastness of the developed problems of a general theoretical, sectoral and legal-technical profile, etc.), and the role that fell to the lot of Roman law (the process of its reception etc.) in the further history of law.

13. Roman Stoics.

Stoicism is a philosophical school that arose during early Hellenism and retained its influence until the end ancient world. The school got its name from the name of the portico of Stoa Poikile (Greek στοά ποικίλη, lit. “painted portico”), where the founder of Stoicism, Zeno of Kita, first acted independently as a teacher. Prior to that, the Stoics in Athens were called the community of poets who gathered in the Stoa Poikila a hundred years before the appearance of Zeno and his students and associates there. Three main periods are distinguished in the history of Stoicism: Ancient (Elder) Stoya (end of the 4th century BC - middle of the 2nd century BC), Middle (II-I centuries BC), New (I- 3rd century AD).

The main representatives of Roman Stoicism were Lucius Annaeus Seneca (3–65), Epictetus (c. 50–c. 140) and Marcus Aurelius Antoninus (121–180).

Seneca was a senator, tutor of the Emperor Nero, and a leading statesman whose political intrigues eventually led to forced suicide at the behest of his cruel and vengeful student.

More consistently than other Stoics, Seneca defended the idea of ​​the spiritual freedom of all people, regardless of their social status. All people are equal in the sense that they are "companions in slavery" because they are equally in the power of fate.

In the natural law concept of Seneca, the inevitable and divine in nature "law of fate" plays the role of that right of nature, to which all human institutions, including the state and laws, are subject.

The universe, according to Seneca, is a natural state with its own natural law, the recognition of which is a necessary and reasonable matter. By the law of nature, all men are members of this state, whether they admit it or not. As for individual state formations, they are random and significant not for the entire human race, but only for a limited number of people. “We,” wrote Seneca, “must imagine in our imagination two states: one, which includes gods and people; in it, our gaze is not limited to one or another corner of the earth, we measure the borders of our state by the movement of the sun; the other is that to which chance has attributed us. This second may be Athenian or Carthaginian, or connected with some other city; it concerns not all people, but only one particular group of them. There are people who at the same time serve both great and small state, there are those that serve only the big one, and those that serve only the small one.

Ethically the most valuable and unconditional, according to the cosmopolitan concept of Seneca, is the "big state". Rationality and, consequently, understanding of the "law of fate" (natural law, divine spirit) consists precisely in opposing chance (including accidental belonging to one or another "small state"), recognizing the necessity of world laws and be guided by them. This ethical maxim is equally significant both for individuals and for their communities (states).

Similar ideas were developed by other Roman Stoics: Epictetus - a slave, then set free, and the emperor (in 161-180) Marcus Aurelius Antoninus.