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Category: History

From the intergeneric public contract to formation of the state

istoriya and philosophy of policy and right

From the intergeneric public contract to formation of the state *

B.S. Shalyutin *

1. Primary human collectives and relations between them

Formation of the human world took place in the process which is usually called today antroposotsio-genesis. The main contents it consisted in transformation of animal community which leading mechanisms of ensuring stability were set genetically, in group where stability was maintained by the ways which are genetically not set. The last were developed by the generations of members of the group replacing each other, gave advantages in comparison with the competing groups and found own logic of development, and then transformed "under themselves" biology of their carriers, having formed eventually the modern person.

The type of human community first in the history can be designated by the term "sort". Ensuring stability of a sort — small group in two-three dozen people — had two aspects. The first — broadcasting through generation change of the way of the organization of a sort. A key role in performance of this function was played by various sacral mechanisms, language, material culture, etc. The second — preservation of concrete people of many making group in concrete timepoint. Here psychoemotional interpenetration, empathy of members of the group acted as the main mechanism. Level of this emotional unification was so high that led to formation kind of of uniform patrimonial soul, uniform patrimonial mentality. There was the most powerful "we" ("ours"). For the member of a sort infringement of it with -

the relative it was from the outside equivalent to infringement of him, any pain of the relative was perceived as own, the principle "one for all and all for one" was basic for intra patrimonial relationship that turned primary group into a certain superorganism.

The outstanding modern researcher Yu.I. Semyonov allocates three types of the norms existing in pre-class obshchestve1, at the same time two of them — moral standards and a taboo — worked only within a sort. Moral standards represented synthesis of experience of empathy at members of a sort and the behavior based on it. Tabu-irovaniye it was formed as the system of the bans which point people did not understand. These bans were developed spontaneously, and in consciousness of people acted as proceeding from all-powerful otherworldly, supernatural forces. As for the third type of norms, they arose as the instrument of regulation of the intergeneric relations which source was talion (Latin talioni — punishment). It was that the reciprocal damage has to be equal to initial: an eye for an eye and a tooth for a tooth, death for death. This principle replaced with itself unlimited blood feud which led to infinite series of murders and death of the conflicting collectives. This third type of norms is most closely connected with emergence of the state, we will consider it in more detail.

Primary childbirth was effective communities, that is why their quantity grew. Though the situational conflicts broke out always, domi-

* Provisions of article formed the basis of the report read by the author at the Third international scientific conference "The Ontology and Axiology Is Right" (Omsk, the Omsk Russian Interior Ministry Academy, on October 19-20, 2007).

** In our magazine it is published for the first time.

a nirovaniye of the person over other living beings long time allowed childbirth of a message rather peaceful co-existence due to development of new spaces. The critical density of the conflicts had to coincide with filling with people of territories, suitable for dwelling. In these conditions the childbirth inevitably became deadly enemies. If to look from within any sort, then any others sort — the most dangerous external objective reality. Strangers need the same benefits, at the same time they it is more dangerous than any animal as more cleverly and, in turn, see in us the most dangerous competitors who are subject at an opportunity to elimination. Strangers, thus, are a source of terrible danger, it is force which can be stopped only by force. Therefore "war of all against all", aspiration to destruction of the competing sort to a man — required "starting point" was it, apparently, also. It is obvious that the provided description is almost identical to "natural state" of T. Hobbes with the only difference: "wars of all" oppose as subjects all not individuals, and childbirth here.

2. Emergence of nadrodovy level of the social organization (legal relations)

So, war, hatred, fear, revenge — here characteristics of "natural state" of the intergeneric relations. How from it the step towards the contract establishing a certain justice could be taken?

Comparing revenge and justice, P. Rikyor wrote that justice is impossible at head-on collision of the resisting parties. For achievement of justice the fair distance has to be established. As the obstacle preventing to find such distance desire mesti2 just also acts. I will add to it that revenge — emotional manifestation. Revenging it is not anxious with a justice problem. The emotion of revenge arises as aggression against encroached on "me" or "ours" and is developed further according to the scheme, typical for destructive emotions. Captured strong, let and one-stage, by feeling of people (and in a bigger degree — group) knows no limit and it is ready to come in the revenge so far as far as it is possible.

The break bringing out of direct collision blocking spontaneous expansion of emotions has to be a necessary condition of justice. Justice is impartial. Control of passions allows to bring to the forefront mind which function is in judging, arguing, conducting trial.

For Rikyor, the distance between the parties is provided with participation of the third. Really, today at the conflicts, armed and close to them, the institute of mediation is popular, but during its considered period was not. Intermediary mo-

zht only to be built in structure of relationship, have to address it. It assumes at least a pause (in P. Rikyor's language it is called a temporary distance), trust to the intermediary and at least preliminary readiness to implement future agreement. Therefore, key is an issue of formation of such system of the relations. The weight of evidence suggests that it developed during formation of dual and patrimonial community (dual and patrimonial marriage) which universality of distribution is conventional. Dual and patrimonial communication also contains a section where still there is nerazdelenno a complex of the relations subsequently developing in the difficult and multicomponent legal sphere.

Formation of dual and patrimonial community, i.e. couples of allied childbirth which is not merging, but living a row, treat as the form of the organization providing reproduction of the person in the presence of an intra patrimonial sexual taboo. The causes of such community in its evolutionary advantage obvious in the conditions of "war of all against all" — a superiority in strength. A sexual taboo, having established absolute interdependence of reproduction of two childbirth, became an absolute obstacle in a way to return on an obosoblennorodovy step.

The casual quarrel between members of two close childbirth could not be developed in infinite revenge. Both understanding of indissoluble interdependence, and that circumstance that the members of each of childbirth getting into a partner sort zone acted as hostages was a barrier here. The mutual zalozhnichestvo in dual and patrimonial marriage saved from war of extermination. Its reasonable consideration, discussion — a prototype of modern court became the instrument of resolution of conflict. The legal relations also begin with it in the history of mankind.

Formation of the legal beginning in life of people is formation of a presumption of court. It has at least two structural components: the appeal to court in a conflict situation and readiness to execute its decision what it would not be. The purpose of a judicial reasoning — restoration of the broken social order. The conflict has to be resolved, and intergeneric balance is restored.

Dual and patrimonial marriage is historically the first form of that public contract which created the legal beginning in the human world. It contains the requirement and expression of readiness to observe the contract, assuming and confirming certain primary level of credibility of the parties and their ability to observance of the contract. It logically generates a presumption of court as procedures of reasonable and impartial resolution of conflict where the parties act as equal subjects of logical confrontation. Is later from

it independent subsystems of more and more becoming complicated legal system stand apart: judicial, rule-making, power authorities, etc. The legal beginning which is formed together with primary contract becomes a source of nadrodo-vy level of the social organization.

3. Emergence of the state from development of the legal beginning

According to classical concepts, simultaneous establishment of the legal law as compulsory general rule and state as the power institute guaranteeing observance of this law results of the public contract. However, according to modern data, these investigations arose far not at the same time. Between dates of birth of the legal law and the state the whole era lies.

Historically primary legal contract, in itself, contained a guarantee of the performance in the most structure. Observance of the contract was directly guaranteed by the contract, but not any external force — the state which then was not even in thoughts. The relation between primary and modern law (contract) is similar to the relation between full-fledged money and their paper substitute. So, gold money is provided with their own cost. The solvency of paper money is guaranteed not by them, and the state. The most ancient contract was observed owing to the power sanction which is contained in it — a mutual zalozhnichestvo. The state turns paper into money, and the written agreement — into the contract. However the essence of the law lies in the human world much more deeply (and it is formed much earlier), than institute of the state, only the convenient and effective mechanism of relations management in society.

At the level of the most general scheme of the logician of emergence of institute of the state looks as follows. After dual and patrimonial, polypatrimonial communities are formed. Their emergence is caused by the same reason — evolutionary advantage before smaller groups on number. At the heart of such communities as today it is known, the intergeneric marriage communications more difficult in comparison with primary dual and patrimonial marriage also lie. Respectively, the probability of the conflicts between members of various childbirth sharply increases. At the same time power collisions of childbirth in intergeneric whole are absolutely inadmissible as they lead to disintegration. At the same time members of the faced childbirth at all not necessarily are in direct mutual hostages. Therefore here the new mechanism of resolution of conflict is necessary.

The institute of mediation, the so-called arbitration court becomes such mechanism. Both sorts, having been at odds, are not capable to resolve proti-

vorechy independently. They address the third, uninterested, to a sort, and therefore — the impartial party capable it is reasonable to judge, to define responsible, to estimate the extent of damage, to establish forms of reciprocal damage or compensation.

To what sort it was necessary to address as the intermediary? Obviously, to the most authoritative, strong, i.e. having the qualities providing implementation of its decision.

By this time the property component of society became more and more essential. The wealth or poverty in the stated scheme have to be considered too. However this stratification not between individuals, and between childbirth. A part of childbirth grows poor, a part — towers. The last as the strongest also act most often as intermediaries, gradually pulling together to themselves judicial functions and functions of coercion.

Between the strongest childbirth the fight for completeness of the power arises. The feudal fragmentation — the continuing fight partly the modified strongest childbirth for completeness of the power which is going long, against variable success including contracts at some equality of forces and coming to the end, as a rule, with formation of the absolutism representing a victory of one sort is in such a way formed.

In modern mass consciousness, after the science allocating two main forms of government — the monarchy and the republic — the delusion dominates that the monarchy is the power of the person, and transfer of power is by inheritance natural and is broken by bourgeois revolutions of Modern times. However the monarchy — the power not persons, and sorts. So, choosing on Mikhail Romanov's kingdom, Russia actually chose a ruling sort. A monarchic way of inheritance of the power not something set, self-evident. In natural, animal communities there is no such mechanism. Nevertheless within the offered scheme of emergence of the state it receives the explanation.

Formation of the state happened in full accordance with the general logic of progressive evolution of complex systems. Without going into detail and hardening, one may say, a little that this logic (more precisely, its important aspect) is as follows. At complication of the organization of progressively moving forward systems the formation new, rather autonomous, structures happens "under realization" a certain function, and at rather high level of development of the last. So, in evolution of fauna at one of steps of development of orientation function the nervous system — as a substratization of this function is formed. And in human history at a certain stage of development of exchange there is money, at a certain stage of development of knowledge the science, etc. is institutionalized. The list can be continued infinitely just because such is the general logic.

Orientation function existed to nervous system. However the last removed orientation to qualitatively other level and made it is incomparable more effective. Advanced organisms are impossible without nervous system. Life could not rise above any level without its emergence. And though orientation process finds absolutely other shape that prevents to make out patrimonial unity at once and furthermore to reconstruct the main steps of evolution, earlier arisen orientation activity remains the main function of nervous system. The same is with a ratio of exchange and money, knowledge and sciences, etc.

In principle, the ratio of the legal law and the state is same. The state does not create the law. The law, including legal, exists and is implemented to the state which is formed during history as structure, as social institute which major function is implementation of the law. The state an essence a substratization, an institutionalization of function of implementation of the law, it takes shape kind from within this process, is built in it, gradually taking in it the dominating position. Therefore evolution of the mechanism of implementation of the law has to be a priority zone of a research of formation of the state in his logician and a faktologiya. The state, being specialized institute, first of all optimizes implementation of the law. Besides, it creates conditions of development of the law. As, unlike natural, the human law is created by people, with historical change of the person and society also the law changes; the state actively participates in this process as an institutional subject. Since the concrete level of development of the law, its existence and further evolution without the state are impossible. However and in the presence of nervous

systems orientation processes happen not only in its framework; money does not exclude impecunious exchange; sciences and extra scientific knowledge exist in parallel; the law "lives" in wider, than institute of the state, the social field.

Logic of development of the legal beginning not the only factor causing formation of institute of the state. Along with legal, an important role was played also by political logic — preservation of community, its integrity in confrontation with external competitors. The power superstructure allowing to subordinate the isolated subjects to the centralized will provided a possibility of the effective armed opposition.

The state as political institute is designed to provide integrity of a social system. The state as legal institute is designed to guarantee the public contract of equal subjects. These are two different independent logicians who at various stages of historical development, in various social circumstances are in the different relation with each other. In the absolutist or totalitarian state the political beginning completely dominates, minimizing legal. In the constitutional state which existence is inseparably linked with civil society these two beginnings work one through another and are in relative harmony. At the same time their confrontation takes place always, and the line of balance is displaced depending on a complex of internal and external sociohistorical circumstances in any given party.

1 See: Yu.I. Semyonov. Forms of public will in pre-class society: tabuitt, morals and common law//the Ethnographic review. — 1997. — No. 4. — Page 10.
2 See: Rikyor P. Spravedlivost and truth//Rikyor P. Spravedlivoye. — M, 2005. — Page 14.
Silas Brian
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