Исаев И.А. «Органический» правопорядок и правовой «солидаризм»

Аннотация: The article discloses the concept of “sovereignty” and its parity with “political power”; it is underlined that the institute of the state is the most adequate expression of political integrity. The theory of “systematic” state is considered. The article states that if the basis of the statehood is the idea and the principle, the basis of the society is the nature and the nation as a part of the natural. The nation also may represent certain integrity, not only incorporated in a state, under its authority and in its territory: only state may be really sovereign but not nationality. Evolution of concept and attributes of the sovereignty in the political theory is considered; some aspects of the theory of division of powers are mentioned. The “state – a legal person” concept and the “legal solidarism” doctrine are analyzed. The latter is built upon the combination of the private and the public: here the private becomes a systematic element of the public; however the integrity as such may be conceived only from the public, uniform and solidary position; and advocates of this opinion emphasize the objective nature of such approach inspired by the vital reality itself. The article states that the “legal solidarism” doctrine has generated concept of the social right based on the idea of priority of a society and objective right in relation to an individual and subjective rights which by all means originate from social duties, and any “human rights” here appear no more than just consequences of its duties. The concept of “basic (benchmark) rule” as a priori inherent in any positive law order is considered. The law order “basic rule” is not a material standard (its content is considered expressly obvious), it is postulated as the highest institutionalizing standards, and other standards are originated from it (as the private from the general) logically and causally. The “basic rule” in the system of imperous relations becomes a transdential-logic condition of normative interpretation with carrying out not an ethic-political but an epistemological function. The “the basic rule” function is in substantiation of the objective validity of the law order, i.e. compulsory order standards established by acts of human will, in interpretation of subjective sense of these acts as their objective sense. The article analyzes the “natural law” evolution and the content of this concept. It is stated that the “natural law” has gradually turned into an unconditional criterion of an ethic-political estimation of the positive law itself.

Abstract: The article discloses the concept of “sovereignty” and its parity with “political power”; it is underlined that the institute of the state is the most adequate expression of political integrity. The theory of “systematic” state is considered. The article states that if the basis of the statehood is the idea and the principle, the basis of the society is the nature and the nation as a part of the natural. The nation also may represent certain integrity, not only incorporated in a state, under its authority and in its territory: only state may be really sovereign but not nationality. Evolution of concept and attributes of the sovereignty in the political theory is considered; some aspects of the theory of division of powers are mentioned. The “state – a legal person” concept and the “legal solidarism” doctrine are analyzed. The latter is built upon the combination of the private and the public: here the private becomes a systematic element of the public; however the integrity as such may be conceived only from the public, uniform and solidary position; and advocates of this opinion emphasize the objective nature of such approach inspired by the vital reality itself. The article states that the “legal solidarism” doctrine has generated concept of the social right based on the idea of priority of a society and objective right in relation to an individual and subjective rights which by all means originate from social duties, and any “human rights” here appear no more than just consequences of its duties. The concept of “basic (benchmark) rule” as a priori inherent in any positive law order is considered. The law order “basic rule” is not a material standard (its content is considered expressly obvious), it is postulated as the highest institutionalizing standards, and other standards are originated from it (as the private from the general) logically and causally. The “basic rule” in the system of imperous relations becomes a transdential-logic condition of normative interpretation with carrying out not an ethic-political but an epistemological function. The “the basic rule” function is in substantiation of the objective validity of the law order, i.e. compulsory order standards established by acts of human will, in interpretation of subjective sense of these acts as their objective sense. The article analyzes the “natural law” evolution and the content of this concept. It is stated that the “natural law” has gradually turned into an unconditional criterion of an ethic-political estimation of the positive law itself.