Open AccessTHE DOCTRINAL IMPACT OF SOCIAL CONTRACT CATEGORY ON THE DEVELOPMENT OF THE PHILOSOPHY OF LEGAL SCIENCES
Author(s) -
R. F. Hrynyuk,
Ю. В. Гоцуляк
Publication year - 2021
Publication title -
pravova deržava
Language(s) - English
Resource type - Journals
ISSN - 2411-2054
DOI - 10.18524/2411-2054.2021.41.225571
Subject(s) - legal realism , renunciation , social contract , compromise , law , empirical legal studies , epistemology , legal profession , legal formalism , political science , freedom of contract , law and economics , sociology , private law , philosophy , comparative law , black letter law , theology , politics
The article researches the peculiarities of the social contract theory influence on the philosophical foundations of legal science. The author analyzes the classical doctrines of T. Hobbes, J. Locke, J.-J. Rousseau, who created the theory of social contract, the article substantiates the influence of this theory on the interpretation of certain legal principles, the function of law and the initial legal origins. It is studied the nature of the legal compromise between public and state legal principles. It is stated the scientific position that the contract as a legal attribute and negotiability as a legal property of the person are the order ontological foundations (instead of simply a civil category). T. Hobbes's theory of the social contract defends the position that the renunciation and transfer of absolute freedom and absolute "right to everything" is a transition from the individual to the general legal state of society, which makes it possible to answer questions about internal legal formation and human development as a legal entity. Locke demonstrates the concentration of legal meanings not in supernatural principles, but in man himself, since it is a person who is the source of legal potential. According to the position of J. Locke, individuals are endowed with equal freedom and as a consequence, equality in the perception of each other without any renunciation, and thus, are capable of legal compromise. Therefore J. Locke's theory of social contract allows to doctrinally substantiate key legal principles as innate integral legal attributes of human existence. The theory of social contract makes it possible to look at the nature of power, as well as communication between the sovereign and the people from a purely legal and anthropological point of view, to distinguish their logic unlike the theological approach and its principle of «given». Order as a key legal characteristic is revealed through bargaining power as the ability to obey established requirements. This theory for the first time reveals some inalienable legal meanings: the legal capacity of legal consciousness, mutual restraint, subjugation, generality.