The organic theory of national law in the second half of the XVIII – the frst third of the XIX century
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2018, Vol 29, Issue
Abstract
It is shown that during the investigated period, the organic theory of national law con- sidered it as a unit of legal development, the totality that covers a person and its subjective right. It was based on the consideration of the nation as a natural population, at the same time endowed with a number of social and ethno-cultural characteristics and socio-psychological unity. In much of the works it was pointed out that the development of a nation is similar to human life: it is born, rising, becomes mature, aging, dying. This reflected the propagation of the idea of a nation as a collective individual. Within this vision, law-making is part of the nation’s life and always accompanies its development regardless of state formation, although the latter is seen as a sign of its maturity. This does not deny the idea of social will, but makes the latter derivative and deterministic, one of the manifestations and consequences of the life of the nation, and not constitutive for the latter, denies the social will and the state in self-worth, submits the latter to itself. Accordingly, the law created by the state is considered not as a new legal order, but only as a derivative of the national legal order, part of the tradition in its devel- opment. The organic theory more consistently created the basis for considering national legal experiences as equal in character and individuality, and the relevant national legal orders – as non-random and prolonged in time phenomena. Organic theory stated not only formal inde- pendence, but also the substantive uniqueness of the national legal experience, considered it in inseparable unity with the spiritual and cultural vocation and development of the nation.
Authors and Affiliations
Oleksii Kresin
Keywords
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