Topic 12

Bourgeois political and legal doctrines in Western Europe in the second half of the
nineteenth century.
Introduction.
In the second half of the XIX century. in Western European countries, a developing civil society
was freed from the remnants of feudalism in the economy, politics, and social structure. Universal
equality before the law destroyed the remnants of the estate system, made purely nominal noble titles.
The rights and freedoms of individuals, initially expressed in private law, soon demanded public law
guarantees limiting the arbitrariness of state power and its interference with private law relations. The
development of a representative state during this period is associated with the expansion of the circle
of persons who have the right to vote, as well as with the formation of a system of political parties
participating in elections and the activities of legislative institutions. An important role in political life
was played by broad democratic movements (for universal suffrage, including for women, for social
reforms, etc.).
Significant changes occurred in the economy. From the initial capitalism, based on the individual
entrepreneurship of private owners, their competition and unplanned production, financial adventures
and speculations, society gradually shifted to capitalism organized in trusts, cartels, joint-stock
companies.
In the same period, the class of wage workers created organizations capable of resisting the
egoism of entrepreneurs. In almost all countries, trade unions have arisen. Under the onslaught of the
working class and democratic movements in many countries, laws are being passed on the rights of
trade unions, on working hours, on social insurance and provision, health care, and public education.
In a number of countries, political parties have been created that aim to protect the interests of the
working people.
The bourgeois political and legal doctrines of this period mainly continued to develop the ideas
of liberalism in the first half of the nineteenth century. New for bourgeois state studies and
jurisprudence was the recognition of the need for reforms that soften the severity of a number of social
and political antagonisms. The study of a representative state in connection with the emerging system
of parties, each of which had a clear program, a large and stable circle of supporters, also became new.
Philosophical positivism remained the general methodological basis of most bourgeois theories.
In it, legal positivism, which had arisen earlier, gained its additional justification, retaining the
significance of the prevailing trend in jurisprudence. At the same time, in the political and legal
ideology, a firm tendency of transition from pure positivism to generalizations, from factology and
textology to philosophy, sociology, historicism, and psychology, has emerged and began to be
implemented.

Legal positivism. K. Bergbom

The dominant direction of bourgeois jurisprudence remained legal positivism, which received
the most extensive justification in the book of the German jurist Carl Bergbom "Jurisprudence and
Legal Philosophy" (1892).
Relying on Auguste Comt’s philosophical positivism, Bergbom opposes the “meta legal”
principles and ideas introduced into jurisprudence by the theory of natural law, the doctrine of the
“national spirit” of the historical school of law, all those doctrines that try to investigate not desired
right.

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 According to Bergbom's theory, science should study, not evaluate or demand; she must deal
only with real objects and investigate them by the method of experience. Accordingly, the theory of
law should be concerned only with objectively existing law, based on law-making facts, that is,
legislative (and generally law-making) activity of the state.
It is the acting, positive law that ensures order, harmony and security in the state, creates a strong
legal order, which stands over the citizens, over power, over the state.
Since natural law is nothing more than an assumption, something subjective and fictitious, it, if
taken seriously as a phenomenon of legal order, entails the destruction of the rule of law and anarchy.
Legal affairs arising in practice cannot be solved on the basis of the natural-law doctrine dividing the
right to natural and positive: "A natural rights supporter must renounce a positive right; who does not
want to renounce a positive right must reject the natural," wrote Bergbom. - Any dualistic the doctrine
of law is impossible from the point of view of practical legal life. " The only real right is that which is
expressed in the law. "The essence of any right is that it acts." Norma is the alpha and omega of the
law, its beginning and end, there is no other right beyond the law.
Following the French exegesis (interpreters, commentators of the Civil Code), Bergbom
considered law as something logically complete and free of space - the same impenetrability as that of
the physical body is inherent in the law. The whole task of the court is to determine the decision on the
case on the basis of a logical interpretation of the text of the law.
Following the head of the English analytical school J. Austin, continental positivism saw the
source of law in sovereign power, in state will. Hence conclusions were drawn about the rule of law,
about the subordination of judges to the law. Legal positivism has perfected the development of
methods for interpreting legal norms, especially logical, grammatical, and systematic ones.
The dogma of law, justified by legal positivism, is of paramount importance for law
enforcement, especially during periods of relatively stable development of civil society.
Yet legal positivism did not create a genuine theory of law. The refusal of “value judgments” and
of philosophical approaches to law led beyond the bounds of jurisprudence not only all the criticism of
law (it is known that contradictions and gaps in the laws were never avoided), but also the prognostic
approach to the law itself, i.e. improvement and development. Legal positivism could not give an
answer to the most important question for him: how to ensure the legality (legitimacy) of the law-
making activity of the state, if it is itself the force that creates the law?
The whole theory of legal positivism was based on the assumption that the state is legal, but this
assumption was repeatedly refuted by practice (“a drop of power is better than a bag of law”), and only
the meta-legal principles could lead to the justification of a legal state.
Finally, no matter how great is the merit of legal positivism in the justification of law and order,
the problem of human rights was rejected by him along with the theory of natural law, and the man
himself was recognized in law and order only by an “individual” endowed with “subjective rights”
derived from the texts of laws and not from the nature of man himself.
On the basis of legal positivism, the concepts of a number of liberal state scholars were also
built, analyzing and commenting on public law institutions on the basis of a formally dogmatic
methodology.
A typical representative of this trend was the French state official Ademar Zamen (1848-1913).
Esmen - a representative of the law school of public studies, the essence of which is reduced to the
removal of the state from the constitution through formal legal means, to identifying the state with the
rule of law, with the system of state legal norms, to the fundamental separation of state science from
sociology. In the book "The General Foundations of Constitutional Law" (1895), Esman argued that
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constitutional law and sociology have different areas of knowledge, each of them has its own subject
and its own research methods.
Similar views on the state as a "legal organization of the people" were held by German state
scholars Paul Laband and other liberal positivists, who reduced statehood to commenting on existing
constitutions and the practice of their implementation.

The teachings of R. Ihering on law and state

Legal positivism was consistent with the everyday legal interests of a developing civil society,
but did not respond to a number of sensitive questions. This was due to the desire of a number of
lawyers and state scholars to find factors external to the state and law, with references to which one
can more ideologically substantiate a representative state. The search for these factors led to the
combination of political and legal theories with sociological, psychological and other concepts.
Rudolf Iering, a famous German jurist (1818-1892), attempted to apply some ideas of sociology
to the doctrine of law and the state.
Considering as insufficient the "jurisprudence of concepts", the formally dogmatic approach to
law, Mehring, in his book "Purpose in Law" (vol. I, 1872), sought to give modernity to him right and
the state a sociological justification. The central concept of his theory is the notion of interest
expressed in law. According to his definition, “law is a system of social goals guaranteed by coercion,”
“law is the totality of the living conditions of society in the broad sense, provided by external coercion,
that is, by the government”.
The departure from the formal definition of law and the attempt to disclose its social content in
the teachings of Ihering came down to the argument that all members of contemporary society are
solidary in their interests and pursue common goals; accordingly, he defined law as the expression
“universal interests”, “the realized partnership of the individual with the society”.
If natural phenomena are subject to causality, then the causes of human actions are goals; an
individual driven by his own interest seeks to achieve particular goals, which are reduced to a common
goal and to a common interest in turnover, based on the equivalent, giving "to each his own." The
goals of each and every one are secured by the law: "The goal is the creator of the law."
In the work “Struggle for the Right” (1872), Iering asserted that the law did not always express
the interests of society. He criticized the opinion of the historical school of law (Savigny, Puhta) that
law develops peacefully, spontaneously and painlessly, like language and culture. The law, according
to Ieringa, developed in the bloody struggle of classes and estates, seeking to secure their rights in the
law through legislation. "All the great acquisitions that can be indicated by the history of law: the
abolition of slavery, serfdom, freedom of land ownership, crafts, religion, etc. - all this had to be
obtained only in this fiercest, often centuries-long, ongoing struggle, and there was a right, often
marked by blood flow ... "
But this struggle, Iering asserted, changes its character after the embodiment in the right of
equality of all before the law, freedom of property, crafts, conscience, etc. (i.e., in essence, the
principles of civil society). Now, Iering wrote, the struggle should be waged not for the approval of
any new principles in the law, but only for the maintenance and maintenance of a firm order in public
life, for the implementation of the already existing law, since the unity of the existing law and the
individual rights expressed in it has been achieved as subjective rights. “Law in an objective sense,”
Iering wrote, “is the totality of legal principles applied by the state, the legal order of life; law in the
subjective sense is the concrete embodiment of the abstract rule in the concrete power of the
individual.”
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 Therefore, the thesis of the "bloody" development of law in the sense of the struggle for the right
of classes and classes Iering refers to the past. Iering interpreted the contemporary struggle for the right
only as protection of the existing right from violations, as upholding the subjective right of an
individual individual violated by another person.
Subjective right does not exist without an objective, and vice versa. "In my right," Iering
emphasized, "the right in general is violated and denied, in it it is defended, affirmed and restored."
"Everyone is called upon and obliged to suppress hydra arbitrariness and lawlessness, where only she
dares to raise his head; everyone who enjoys the grace of law should in his turn also support as much
as the power and authority of the law - in short, everyone is a born fighter for the right society. "
Hering argued that without a struggle there is no right, as without labor there is no property.
Along with the position: "In the sweat of your face you will eat your bread" is the same true position:
"In the struggle you will find your right." From the moment when the right gives up its readiness to
fight, it gives up on itself ... "
To protect the interests of society against the egoistic interests of individuals, Iering considered,
a state is necessary. "The state is society itself, as a power of organized coercive power." "The state is
a society that forces ..."
Iering - for a strong state power: "Powerlessness, the infirmity of state power is a mortal sin of a
state that cannot be forgiven, a sin that society does not forgive, does not tolerate ... The most
intolerable form of the state is still better than its complete absence."
Iering justified the idea of self-limitation of the state by law. In principle, the state is not limited
by its own laws; in despotic states, one-sidedly binding (i.e., only for subjects) norms form the
beginnings of law; however, "the right in the full sense of the word is a bilateral-binding force of law,
the subordination of the state power itself to the laws it issues."
The law, Iering emphasized, is "a rational policy of the authorities." The state’s own interest,
“egoism forces the authorities to embark on the path of law,” for the very reason that “one rule
replaces thousands of individual orders for power”.
More importantly, with the help of the law, the protection of common interests, the fulfillment of
the objectives of law and the state are ensured. “Only where the government itself obeys the order it
prescribes,” wrote Iering, “the latter acquires final legal strength; only with the rule of law, national
welfare, trade and trades flourish, and mental and moral forces are inherent in the people. The right is a
reasonably understood policy authorities".
The teachings of Iering had a significant influence on the development of bourgeois and legal
thought. At the same time, from the very beginning it gave rise to a number of doubts and reasonable
objections. If the subjective right is identical to the protected interest, then, the lawyers asked, does it
remain with the loss of interest? The rationale for the state’s connectivity to the right to refer only to
the “rationality of the policy” of the supreme power holders was also not convincing.

The state-legal concept of G. Jellinek

Along with the "jurisprudence of interests", other concepts of bourgeois jurisprudence were
developed.
A kind of attempt to combine the formally dogmatic understanding of state and law with
sociology was undertaken by the German state expert Georg Jellinek (1851–1911).
Jellinek distinguished the social doctrine of the state and the doctrine of state law. Following the
Neo-Kantian methodology, he argued that these teachings are based on different methods, and
accordingly the state and the law have different aspects and definitions. The state as a social
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phenomenon is the union dominant unity of sedentary people possessing the primary dominant power;
the legal concept of the same state is reduced to "corporation" (legal person, subject of law). In various
aspects (in the normative and in the social), law is also studied.
Distinguishing between social and legal concepts of state and law, Jellinek agreed with Lassalle
and other authors who distinguished the written constitution from the actual one created by the actual
distribution of social forces that exists in each state regardless of the written legal provisions. Right,
according to the same concept, is a compromise between various conflicting interests. To this, Jellinek
adds that power and law in their social aspect should be interpreted psychologically, since all
phenomena of social life are of a mass-psychological nature. Society, according to Hellenek, "means
the totality of the psychological connections between people that manifest themselves in the external
world."
Acting law Jellinek defined in the spirit of legal positivism: "Right is a set of emanating from
external authority, guaranteed by external means of the norms of mutual relation of individuals to each
other."
Speaking of law in the social aspect, he noticed that the positivity of law is ultimately based on
the average, typical conviction of the people that this is a law in force. The whole legal order is built
on such a basis: "Right exists only in ourselves, it is a function of human communication and therefore
must be based on purely psychological elements."
In the socio-psychological terms, the state is also interpreted, reducible to the ratios of the wills
of those in power and those in authority. Obedience, according to Jellinek, is ensured where the actual
relations of domination are joined by their psychological recognition of subjects as normative relations
(“must be as it is”). It is this normative consciousness that gives the government a legal character that
makes it strong: "State power must - apart from transitional eras - rely on the conviction of the people
in its legitimacy, which is applicable to any form of state, not excluding unlimited monarchy."
Jellinek, therefore, expressed the idea, later called by sociologists and political scientists the idea
of "legitimizing state power", its recognition as subservient, rooting in public opinion as the socio-
psychological basis of state order.
Like other liberals, Jellinek attached great importance to rights and freedoms as a necessary
condition of individual activity free from state interference. Since, from the point of view of legal
positivism, these rights and freedoms are determined by the objective right that is created and applied
by the state, it was necessary to prove the “connectedness of the state” by the right created by it; from a
legal point of view, Yellinek explained this connectedness by the binding nature of laws for state
bodies: “The activity of state bodies is state activity itself, there is no other state activity other than that
carried out through its bodies”. However, since "the will of a state body is the will of the state", from
the same purely legal point of view, the same argument can turn into the opposite: any act of a state
body that contradicts the law should be considered legitimate.
Jellinek finds a way out of the difficulty in reference to the social concept of state and law, to the
dominant socio-psychological view: "Our whole modern culture is based on the conviction that the
state’s power has its limits, that we are not subject to state slaves.”
Jellinek's reasoning reflects a higher level of constitutional development of the German Empire
than Iering’s appeals to the mind of the ruling circles.
Jellinek is ready to admit that class domination existed in the past, based on the privileged
political position of a part of the people; but since now, argued Jellinek, there are no closed ruling
classes, the state is a representative of the common interests of its people.

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 But still, society consists of different, opposing, opposing social groups, and therefore it cannot
have a single will; a representative institution (parliament) should express the common people's will.
How to remove this contradiction? Jellinek, like supporters of the law school of public studies,
comments and approves the institutions of parliamentarism, but considers a purely formal point of
view, theoretically separating representatives and represented, to be insufficient. "In a state with a
representative form of government, the people, as a single element of the state, are at the same time an
active member of the state, a collegial state body." The people, explained Jellinek, affect the course of
public affairs through suffrage; "Parliament, whose will is completely at variance with popular beliefs,
cannot long remain in power."
In parliamentary, representative government, according to Jellinek, the contradiction between the
unity of the state as a legal person and the social disunity of the interests of the people forming this
legal person is removed.
The concept of Yelinek in its program part served to substantiate the development of
representative institutions of a parliamentary type in the German Empire and other countries; Attempts
to unite legal and social notions of the state to some extent anticipated the concept of legal and social
state peculiar to neoliberalism.

Problems of state and law in sociology G. Spencer

Considerable attention was paid to the problems of political and legal theory in sociological
concepts of philosophical positivists. The most prominent of them - Herbert Spencer (1820-1903) -
was very popular in England, the United States and several other countries. His main work is "The
System of Synthetic Philosophy" (1862-1896).
Spencer considered society as a peculiar organism, a complex aggregate, developing according
to the general law of evolution. Society interacts with the environment (nature and - or - other
societies) and is affected by this environment; as a result, the state is formed: "The government arises
and develops as a result of an offensive and defensive war of society against other societies".
Initially, the main duties of states were to protect against external enemies and the protection of
society from internal enemies. On this basis, according to the theory of Spencer, formed the militant
type of social organization.
Its characteristic features are: the people and the army have the same structure, organized on the
basis of compulsory unification, a centralized regulatory system; society as an organism is
subordinated to the main nerve center and is constructed hierarchically: the center — subcenters —
sub-subcenters, etc .; the place of the individual in the social hierarchy is determined by his status; the
life, freedom, property of the individual belong to society; the state establishes not only prohibitions
(“what cannot be done”), but also prescriptions (“this and that should be done”); banned and
suppressed all associations and unions, except those that are part of the state organization; society
seeks to produce everything necessary for its existence independent of other societies; of the spiritual
qualities of members of society, bravery, loyalty to this society, diligence, low initiative, blind faith in
authority, and confidence in the necessity and usefulness of government intervention are highly
respected.
The military type of societies, Spencer wrote, is gradually being replaced by an industrial one,
based on the interaction of society with nature (industrial activity).
An industrial-type state-society is not based on hierarchy (different statuses), but on equality, not
on coercive despotic regulation, but on free contracts and private initiative, not on the “artificial
distribution” of government benefits for military purposes, but on the principle of equivalent,
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encouraging initiative and enterprise, on the “natural distribution” of benefits according to justice. The
sole responsibility of the government is to maintain justice; for this, it is not a positive, but only a
negative regulation. To a member of the industrial society, the government says: "You must not do this
and that," but does not say: "You must do this and that."
The main difference between military and industrial societies, as defined by Spencer, is that
"before individuals served for the purpose of society, now society must serve for the purposes of
individuals."
Spencer wrote critically about a number of aspects of contemporary society. Apart from the fact
that it is still heavily mixed with the remnants of the military regime, regress rather than progress is
noticed even socially: "For, although the worker can, at his own discretion, enter into an agreement
with anyone, but this, in essence, comes down to his the right to change one slavery to another. The
pressure of circumstances is more severe than the pressure that the master could produce on his serfs. "
In this regard, Spencer approves of the organization and activities of labor unions, which force
entrepreneurs to make concessions and foster a sense of solidarity in the workers. Spencer regarded the
"violent practice" of the trade unions as "an expression of the transitional social state that is found by
modern semi-military, semi-industrial societies".
Spencer regarded government intervention in industry, commerce and spiritual life as a relic of
the military regime. It adversely affects the development of industry and the character of citizens
(implants monotony, passive obedience, lack of initiative, interferes with the natural adaptation to the
requirements of the environment). All the achievements of material and spiritual culture, Spencer
argued, were created "by private initiative, and government intervention not only did not bring any
benefit, but even happened directly harmful." The project of "sociocracy" of Comte was condemned by
them as a projection of militarism on the industrial type; the true basis of the latter and its development
into a higher type are, according to Spencer, the rights of the individual as private species of equal
freedom for all.
Spencer objected to those who, following Bentham, argued that the state is the creator of law.
"Rights, in the true sense of the word, are the conclusions of the principle of equal freedom ... Studying
these conclusions, we will see that not legislation is the source of law, but law is the basis of
legislation."
Spencer gave the traditional list of individual rights for liberalism (personal security, free
movement, freedom of conscience, speech, press, etc.), paying particular attention to the right of
ownership and freedom of private business. Considering individual private property as a conclusion
from the principle by which each individual must bear the consequences of his activity, Spencer
defended "the right of every person to go about his business as he pleases, whatever his occupation, if
only they do not violate the freedoms of others."
The political rights of citizens Spencer considered only as a means of ensuring individual rights.
Referring to the experience of history, he wrote that "the rights of individuals deprived of participation
in political activities are inevitably violated. To this it must be added that political rights must be so
distributed that not only individuals, but also classes cannot oppress each other." Therefore, he
endorsed the ever wider electoral right (objecting, however, to the granting of political rights to
women) and the development of representative institutions.
Spencer wrote with alarm about the revival and strengthening of a number of characteristics of
the military society in Germany, England, France, the development and expansion of armies, the
growth of the bureaucracy, the strengthening of the role of the government and its interference in trade,
industry, labor and other relations.
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 In the sensational article "Man against the State" (1884; in Russian translations - "Impending
Slavery", "Personality and State"), Spencer condemned the growing tendency of state intervention in
public relations under the pretext of improving the living conditions of any social strata. He argued
that the hope for public assistance and government benefits not only weakens personal energy or
private initiative associations, but is also dangerous for society as a whole: "Any expansion of
administrative regulation leads to the establishment of new regulatory agents, more extensive
development of bureaucracy and strengthening of the group of officials ... A cohesive, relatively
uncrowded group of bureaucrats connected by the same interests and acting under the leadership of the
central government, has a huge advantage over a scattered mass of society ... The organization of
officials, going beyond a certain phase of development, becomes invincible. " State intervention in
public relations, according to Spencer, will soon lead to state socialism, and thus to the transformation
of the working people into slaves of society, since the dominant officials will of their own free will
determine the working time of workers and the measure of their remuneration.
The reason for the failure of state socialism and communism, Spencer saw in such shortcomings
of human nature as the love of power, ambition, injustice, dishonesty. "There is no such political
alchemy by which tin instincts could be turned into gold acts." All attempts to accelerate the progress
of mankind with the help of administrative measures lead only to the revival of institutions
characteristic of the lower (that is, military) type of society, ”wrote Spencer,“ backing away, wanting
to go forward. ”
The justification for the freedom and rights of the individual as the basis of an industrial society
is undoubtedly the virtue of Spencer’s sociology. By the end of the XIX century. the fallacy of Comte's
desire to abandon in industrial society the rights of the individual became apparent, and Spencer’s
critical remarks on this subject were quite fair. However, Spencer did not accept the equally important
idea of his great teacher - the desire to establish an industrial society on social altruism, to organize it
in such a way that everyone would strive to "live for others", as Comte said.
Unlike Comte, Spencer was inclined to interpret the relations of members of industrial society in
the spirit of individualism, brought to the isolation and competitive struggle of individuals. A well-
known role in this was played by Spencer’s periodic hobbies of the social Darwinism that came into
fashion. Spencer argued that the well-being of the human race and its development are ensured by the
harsh law of struggle for existence: “Poverty in which there is incapable; - these are the decrees of this
great, far-sighted and all-good law. " He objected to the laws on social security, health care and others,
arguing that government assistance to weak, sick and incapable people will lead to the degeneration
and death of the human race, because it will artificially contribute to the preservation of "gifted"
individuals.
The fears and dark prophecies of Spencer about the possible absorption by the state of society
and the individual were realized in totalitarian states. However, another process is known to the 20th
century: with the help of a modern constitutional democratic state, it was possible to overcome, to get
rid of, or at least to weaken, the crisis phenomena in the economy of an industrial society. No less
important is the growing social role of the modern state in the developed industrial countries, the
redistribution of national income organized by it in the interests of society as a whole and, especially,
socially disadvantaged groups.
Spencer wrote that as a result of further evolution, improvement of people and social relations,
the industrial type will evolve to a higher type of society, in which industry products will be used not
for military purposes or increasing material well-being, but for performing higher activities. At the
same time, the "Union of all the highest representatives of civilization" will be formed and the
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development of human nature, whose personal desires will coincide with the interests of all society,
will complete the development.

Conclusion
The development of political and legal institutions of civil society in the second half of the
nineteenth century. caused the expansion of the program-evaluative part of bourgeois political and
legal doctrines, their replenishment with ideas of parliamentarism, legality (interpreted as
"connectedness of state by law"), the party system, the problem of evaluating trade union
organizations, and also "positive responsibilities of the state".
The theoretical vacuum, formed after the rejection of the rationalism of the revolutionary era,
was filled with positivistic, sociological, psychological, neo-Kantian and other ideas of philosophy;
hence the diversity of political and legal doctrines of the second half of the nineteenth century. It was
at that time evolved so vividly expressed in the XX century. pluralism of political and legal doctrines,
the diversity of their theoretical and methodological foundations, conceptual and categorical
apparatuses, to a certain extent of the program-evaluative part of the teachings on law and the state.
The content of the program part of the various political and legal doctrines gave them a social class
character, sometimes the same type for methodologically opposing doctrines.
This chapter sets out bourgeois doctrines in their social orientation, since they contained a
program for the development of civil society on a capitalist basis. The ideas of reforms expressed in a
number of bourgeois doctrines in order to mitigate social contradictions did not contradict this either.
All bourgeois teachings, including those that justified such reforms, unanimously opposed the theories
of state socialism and communism.