Пошук загального у праві як змістовної подібності національних правопорядків (друга половина XVIII – перша третина ХІХ ст.)

Abstract

The purpose of the article is to determine the common conceptual foundations of different theories for finding common ground in law and consider a philosophical and rational approach to understanding the substantive similarity in the development of national legal systems in the second half of XVIII – first third of XIX century. Methodology. The meaningful element of the subject of research is a comparative legal methodological approach, derived from the comparative philosophy, which identifies the object of study, defines its subject, integrates into a single set of other methodological approaches and methods of cognition. Scientific novelty. Bankruptcy of the idea of he possibility of formalizing any General in law in the form of a separate legal order was comprehended and proclaimed by the scientists of the second half of the XVIII – the first third of the nineteenth century. The search for General in law was manifested, among other, in attempts to comprehend the meaningful similarities in the development of legal systems. Within the philosophical-rational approach to understanding the similarity of legal systems, reflecting elements of ius-naturalist thinking and relying on the ideas of critical Kant, the following key concepts could be distinguished: law as mathematics (invariant extra-local and non-historical logic); parallel independent development; pure reason, which is formed historically; the doctrinal closeness of legal systems. In our opinion, for all these concepts, the following general principles are characteristic: 1) the decisive or influential factor of legal development is the ideas that in their pure forms are or become international ones; 2) regardless of whether the fundamentals of these ideas are substantive (laid down in the nature of human thinking), or purely historical, they develop, acquire different national forms, spread in space; 3) the influence of such ideas on specific societies and their national legal orders is not absolute, it is differentiated depending on physical and social features or competes with the original ideas, carriers or creators of which these societies are. Consequently, it was discussed whether it is possible, in the conditions of plurality and non-coordination of the content of national legal systems, the essential unity and the stadiarity of the world development of the principles of positive law. It can be argued that scholars in this period recognized the limited suitability, the relativity of the idea of such development – as one of the immanent tendencies towards doctrinal convergence (along with the tendency to preserve and deepen the individuality), criticizing its possible teleological implications. Conclusions. The formation of doctrinal unity between national and state legal orders can be seen as an opportunity to objectify of common in law. In the process of gradual convergence of positions of scholars, including leaders of historical and historical-philosophical schools, they identified a single denominator of the existence of different types of law – legal consciousness / spirit of law. Keywords: legal picture of the world; general in law; philosophy of law; convergence of legal systems; legal doctrine; stadiality in law.