Formation of the idea of natural law in Ancient Greece and Ancient Rome
Socrates’ idea of man as a moral being and Plato’s biological naturalism. Philosophical ideas of human nature, its role and place in nature - the factors that prepared the ground for the justification of the idea of natural law by the stoicism school.
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| Язык | английский |
| Дата добавления | 05.07.2022 |
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For Aristotle, law is something that serves the common good. Joining the opinion of all, Aristotle argues that law is a certain equality (and, according to Democrats, is identical to equality), that “concerns the individual” and that “equals should have equally” [8, 1282b]. Personal differences (physical data, skin color, etc.) do not play any role, although the “measure in claims (for a larger or smaller share of political rights)” should be those components without which the state cannot exist. However, equality in Aristotle is not for everyone, and above all, not for slaves, because slavery was common at that time in Ancient Greece. It would seem that he departs from Plato's position in this respect, arguing that 'the very power of the master over the slave is unnatural; for by nature there is no distinction, only by law one is a slave, the other is free. Therefore, the power of the master over the slave, based on arbitrariness, is unfair” [8, 1253a]. After all, who “naturally does not belong to himself, but to another person - he, although a person, is by nature a slave”. But in the end, Aristotle justifies the existing state of slavery, since “domination and subordination are not only necessary, but also useful, and from birth some beings have differences: some are intended for domination, others for submission” [8, 1254a]. Therefore, “one by nature should rule, the other - to obey, and it is to those who are endowed by nature with power - are destined to be masters” [8, 1255c]. Therefore, even virtues such as modesty, bravery, or justice are necessary for a slave only to the extent that “their arbitrariness or lethargy does not manifest itself in the work they perform” [8, 1259b].
Aristotle analyzed monarchy, oligarchy and democracy as possible forms of polity in terms of which state is suitable for which form of polity and how they should be arranged, without determining which is best. At the same time, he pointed out the need to take measures to preserve the existing structure, “to try to protect the state, protecting, on the one hand, from those factors that destroy it, and on the other - to issue such laws, written and unwritten, that would contain orders that especially contribute to the preservation of the state structure” which can ensure the state's longest existence”. Equality, according to Aristotle, finds a specific manifestation in democratic states, where there is the supreme power of the decisions of the people, and where the main basis of the democratic system is freedom, which is based on the principles of equality. In a democracy there must be “first of all the free status of slaves, women and children - to the extent, of course, that it is not considered harmful as well as giving everyone the freedom to live as he pleases and without fear” [8, 1319c].
However, despite the fact that democracy, according to Aristotle, had many vices, including the threat of demagoguery, the misinterpretation of freedom as the right to do what one wants and the desire not to obey anyone, his attitude to democracy looks more positive, comparing with Plato's, where “tyranny arises from no other structure, but only from democracy, in other words, from extreme freedom arises the greatest and wildest captivity” [11, vol. 3, 564a], for although “in a democratic state the common idea is that freedom is above all, and that only in such a state is it appropriate for a person to live free by nature”, but “the insatiable aspiration of one and contempt for all others distorts this system and prepares the need for tyranny” [11, 562c] and “when a tyrant appears, he grows out of this root - that is, from the position of a people's deputy” [11, 365d].
Philosophical ideas of equality, human nature, its role and place in nature prepared the ground for the justification of the idea of natural law by the stoicism school (ca. 300 BC). The law of nature was conceived by the Stoics as independent of positive law, and nature itself as a psychophysical or only physical structure of man. It was the Stoics who formulated several different concepts of natural law, including naturalistic - cosmological, theological and rational [50, p. 10-11]. The idea of natural law has long developed in the form of absolute natural law, based on the belief in the existence of general and unchangeable laws of world life and human relations. It was believed that every living being has natural properties that inevitably manifest themselves in their behavior, and the natural law is an unchangeable and universal ethical or legal norm of human behavior. Absolute natural law got its ideas from the metaphysical perception of world life, the atomism of Democritus, and the absolute justice of Aristotle. It was based on relativism, sensualism, practicality, and anthropology. The natural law teaching of this period has an individualistic, atomistic and mechanistic character.
However, even in the time of Chrysippus, the idea of a fundamental difference between human nature and nature as such, the existence of an immutable law of nature (Lex Naturale) in the form of common sense, equality of all people regardless of wealth and slavery as contrary to human nature, the need to recognize human rights law to preserve human dignity.
The Influence of the Natural Law Ideas ofAncient Greece on the Development of Roman Law
The natural law ideas of the philosophers of Ancient Greece, not being implemented in practice in Greece, had a huge impact on the development of Roman law after the absorption of all state entities that emerged from the Empire of Alexander the Great by the Roman state from the middle of the second century BC. A significant role in the reception of the doctrine of natural law was played by the Scipio group, which included the Greeks Panaetius of Rhodes, Polybius and Roman aristocrats led by Scipio Aemilianus. Being somewhat modified by Panethius, the doctrine of Stoicism on natural law was inculcated on Roman soil, based on reason as the law for all people, their equality, albeit a certain inevitable difference in states, ranks and natural abilities, the recognition of a certain minimum of rights for people as a condition of preserving human dignity [32, p. 158-159]. This is clearly traced in the works of Seneca (4-65 ad), one of the most prominent representatives of late Roman stoicism, an exponent of the spirit of the New Stoic (Empire), who saw the main purpose of the Stoics, who “were removed from public affairs... to improve one's life and create legal bases for the human race” [15, p. 71]. Seneca emphasized the equality of the nature of all people “a slave is a person equal in nature to other people; the soul of a slave contains the same principles of pride, honor, courage, generosity that are given to other human beings, whatever their social position” [4, p. 737], the unity of human nature. Defining the essence of human duty, Seneca emphasized: “Nature brought us into the world related to each other, because from the same principles it created us, for the same purpose it appointed us. She put mutual love into us, encouraged us to communicate. She determined what is right and just; by her command, the one who does evil is more unhappy than the one who suffers evil; by her command, a person is ready to lend a helping hand to another person. Let this verse be in our hearts and on our lips: nothing human is alien to me, to man” [15, p. 408-409].
Polybius, for his part, supplemented the teachings of the Stoics with the idea of the essence of the state, which should be based on justice, a mixed form of government with monarchical, aristocratic and democratic factors based on the principles of stable balance and mutual restraint (the right of veto) [14, p. 159]. The introduction of the ideas of stoicism into Roman law led to them being distinguished along with FAS - God- given, original law and such types of law as JUS GENTIUM (right for all the peoples known to Rome), JUS CIVILE (from civitas - city), JUS PUBLICUM (law in relation to management that was religious in nature), JUS PRIVATUM (law in relation to property and family relations), as well as JUS NATURALE - natural law. Moreover, such a right was considered a directly valid right.
Cicero in his work “Republic” concentrated on the essence of the then understanding of natural law, first defining this concept: “In fact, there is one true law, namely - common sense, which in accordance with nature applies to all people, is unchanging and eternal (from A.Z). By its commands, this law encourages people to fulfill their duties, and by its prohibitions, it keeps them from doing evil. His commands and prohibitions always have an impact on good people, but they have no power over evil ones. The deprivation of this law by human legislation is certainly, from the moral side, erroneous, the restriction of its operation is unacceptable, and the complete abolition is impossible” [16, p. 270].
In real life, human rights in Roman law are considered as privileges associated with rank, which are not personal, but collective in nature, designed to ensure the proper performance of functions that are assigned to the individual by society. Human rights are inseparable from responsibilities or services, and responsibilities are not imposed by the state, but help people realize their potential. The duty of the state was not to ensure and protect individual rights, but to assist in meeting life needs, providing certain services to members of society [50, p. 75, 80]. There was no concept of legal capacity for voluntary action, human rights were not recognized as rights in the legal sense, which continued until the end of the Middle Ages [51, p. 34]. The perception of man as an inviolable bearer of inalienable and sacred rights in ancient times has not yet occurred [52, p. 59-60].
Conclusions
socrate philosophical law stoicism
The crystallization of natural law ideas in Ancient Greece and Ancient Rome had several stages. Important achievements of Greek philosophers of the pre-Socratic period was the development of the foundations of the theory of knowledge, which was used to explain the cosmological model of the universe, substantiating the idea of the existence of a universal logos, the law of nature, uniform for the natural and social environment, where man, as a “natural” being, was not known separately from nature. The eternal Natural law was not established by people, because it was based on the divine mind and its power and was the law of justice and law inherent in nature and society. It was not evaluated as good or evil, due to its objective nature, and therefore its observance was considered true and wise.
The development of humanitarian knowledge, the formation of a secular system of morality and ethics, the study of the essence of man contributed to the distinction between human and natural law, the further development of ideas of natural law, namely recognition of the equality of all people, the prohibition of discrimination based on origin, the requirement of morality in human behaviour. Sophists were among the first on the basis of the distinction between natural and human law, which may contradict nature, began to recognize the equality of all in nature, denied slavery and traditional notions of the “naturalness” of nobility by origin. The main contribution to the understanding of natural law (jus naturale) was made by the Stoics, who proved that it is based on the fundamental difference between nature and human nature, on the understanding of the place and role of man in nature, on the existence of the unchangeable law of nature (lex naturale) in the form of the power of reason, common sense, which demand justice in the form of equality of people regardless of wealth, the recognition of slavery as contrary to human nature, the recognition by law of human rights to preserve human dignity. These humanistic and human-centered ideas were used to study the essence, nature and justice of the state at that time, to distinguish between the concepts of natural and legalized law and were also used as criteria for evaluating written laws.
Progressive natural and legal ideas of the philosophers of ancient Greece, not being implemented in the homeland, from the middle of the second century BC were adopted, developed jointly by Roman Greeks and philosophers and implemented in Roman law as directly applicable law (jus naturale), along with other types of Roman law, as a rational law of common sense, consistent with the moral principles of society, immutable and eternal natural law.
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