Making of the Science of Public Law in Europe

Abstract

In contrast to the approaches widely accepted in historiography, in this article the author analyses the content of the concepts of “natural law”, “contract” and “sovereignty” developed by representatives of the “school of natural law” (Grotius, Pufendorf, Burlamaqui, Barbeyrac), as well as their followers (Locke, Hobbes, Rousseau). After Grotius, the individualistic concept of “natural law” emerges in the writings of Pufendorf, which led the representatives of the “school” to look for the form of the social contract in the private legal agreements of the people with the bearer of sovereign power. The author demonstrates that Rousseau, developing his criticism of these ideas, created a new concept of a public law contract in which the “sovereign” is not a party to the agreement, and the people do not alienate supreme power in his favour, remaining its bearer and its only source. At the same time, he did not raise the question of the real “origins of sovereignty”, which the representatives of the “school’ and their followers focused a lot of attention on, since Rousseau's social contract is not a historical fact. Thus, the formation of the science of public law in the seventeenth and eighteenth centuries reflects the transition from the concepts of “natural law”, “contract” and “sovereignty” based on fact to the concepts based on law.