Хозяйство и право

In the article entitled “Economy and Law,” the Russian reader is likely to encounter the doctrine of the “interaction” of these two “social factors.” Which factor turns out to be decisive in this case, or at least predominant in its influence, depends on the general social worldview of the author: if the latter is an “economic materialist,” then the first place will be given to the economy; if a lawyer, to law; if the author is inclined to avoid extreme views, then both law and economics will be factors of equal influence. This idea of ​​the interaction between various factors of social life occurs not only in the case of economics and law, but also in all other two, three, or even more arbitrarily chosen aspects of social life: law and morality, morality and economics, law and literature, economics and religion, etc., etc. Such a formulation of the question (if, of course, you do not attach to it the significance of just a method of research, the legality or illegality of which must be specifically shown each time) should be rejected in advance as unscientific; and it is natural that a correct answer cannot be given to an erroneously posed question - the latter fatally reduces to boring and fruitless verbal debates, which are especially fortunate in our, and partly in German, literature. The peculiarity of this formulation of the question, in short, is an insufficiently attentive attitude to the actual meaning of the concepts used. A known complex of only some properties of an object is generalized into a concept, and then this concept is interpreted as an expression of a special, independent object or phenomenon that enters into one or another relationship with other phenomena, without asking the question whether these concepts are not only an expression of different aspects of the same object and whether it is therefore fair to consider them as special phenomena that can interact with each other. The result is a complete arbitrariness of their comparison with each other. There is no real and logical basis for this comparison; there is not enough, somewhat expanding the meaning of this term, tertium comparationis. Economics and law, law and morality, etc. – and, accordingly, the conclusions of political economy and jurisprudence, jurisprudence and ethics, etc. can be related to each other with the same formal logical law as, approximately, the conclusions of astronomy or physiology and political economy, or law and the law of gravity, economy and digestion, etc. One can admit, of course, that this kind of rapprochement can also be made logically legitimately, but from the unifying point of view of the laws of the entire cosmos, when we can talk about such, that is, not in the current state of the spiders. But comparisons of economics and law are not made at all in the interests of establishing this cosmic pattern - they have in mind a specific, although logically clearly and not formulated goal - ignorance of social life from its known sides. Neither what is implied by itself, as the only possible reasonable goal of such comparisons, should be raised to the logical height that this goal deserves, and from here all the most important conclusions should be drawn. And the main conclusion concerns the very formulation of the question. If we mean to clarify the relationship between law and economics as aspects of social life, then they cannot be directly compared with each other, because they are only two different sides, two properties of one phenomenon; the latter is thus like a trunk on which both phenomena under study grow. To understand their relationship, we must therefore turn to this whole and determine this relationship only through its mediation. It follows that the question of the mutual relationship between law and economics (as well as any other aspects or “factors” of social life; is not a private question of the theory of law or political economy, it does not fall within the framework of these sciences and therefore cannot be resolved by a simple comparison of their conclusions. This is a question neither of jurisprudence nor of political economy, it is a sociological question: only a science that studies social life as a whole is competent to answer it. This conclusion leads us to a new question: what does it mean to pose a question sociologically, what is the peculiarity of a sociological formulation of a question, and how does it differ from the formulation of a question within particular sociological disciplines? To show this more clearly, let me, at the risk of repeating well-known truths, recall some of the features of our knowledge in general and the resulting features of sociological knowledge in particular. The usual way in which "experience" occurs for a person is this. Through his external and internal senses, a person receives a number of perceptions. By themselves, they represent a chaotic, torn series of sensations; this is heaven and earth before the creative voice: “let there be light,” this light is shed thanks to (and in accordance with) the peculiarities of human cognitive abilities. The method of establishing “experience” comes down to a special coordination of perceptions, to bringing them into a certain order with the help of cognitive forms of the mind. Known sums of sensations are combined together and relate to one source, an object, which is thus the place of a series of sensations, just as in mathematics a line or a known figure is the “place of points” along which a certain point moved. The unifying form of an object belongs to our mind, and the object is projected in space and time, representing only the forms of our perception, also a special way of coordinating sensations. The unity of an object remains in force even when the sensations that served as the material for the formation of the idea of ​​​​a given object change, when, therefore, a change occurs in the object itself. If the unity of an object, which now receives an even more formal meaning of “place of points,” remains in force for human consciousness, despite the fact that the material from which the object was formed no longer exists, if, in other words, a changed object is recognized not as a new object, but only as a change and direct continuation of the previous object, then this is due only to the fact that each given state of this object is in a certain necessary way connected with the previous one, causally connected with it. Thus, the basis of the unity of an object changing over time is the unity of the causal connection connecting its previous and subsequent states, the unity of regularity. It took the greatest effort of the human mind to discover, through the analysis of human cognition, the synthesis that occurs in every cognitive act when establishing an object. It took Kant's genius to prove that. for example, a stone is not an object of the external world, endowed with the ability to evoke in us a series of sensations: color, heaviness, hardness, etc. and given to us as directly as these sensations, but only a certain and rather complex coordination of them, “the place of points.” This act is performed in such a continuous and therefore imperceptible manner during the cognition of the external sensory world. Scientific knowledge is epistemologically no different from everyday knowledge, except for greater attentiveness, greater rigor of analysis; the same cognitive techniques are applied equally in both ordinary and scientific knowledge, and are applied just as imperceptibly (at least in the absence of special analysis) in cases where this is determined by the very property of the object being cognized, for example, in various branches of natural science. But, unlike ordinary knowledge, science also has to deal with objects that do not have such a sensory-tactile appearance as the objects of natural science, but which must be previously established, which in itself is a difficult task. In this case, those cognitive techniques, the presence of which with such an effort of analysis was established for ordinary consciousness, turn into cognitive postulates - known requirements that must be fulfilled not unconsciously, but deliberately. This is precisely the case we have in sociology, where the precise establishment of the subject of sociological study and the method of this study, and, consequently, the boundaries of sociological knowledge is the first and serious scientific responsibility of the sociologist. The German scientist Stammler made an attempt to define the social in general, to establish the constitutive feature of this concept, i.e. such a sign, the presence of which is as necessary for establishing the object of social life as space and time for sensory perception. The establishment of the subject of social science should consist in indicating such a feature; it is, therefore, the criterion by which, from the circle of all ideas and concepts accessible to man, only a few are singled out, which must be brought into a natural connection with each other; Stammler sees this criterion in legal regulation. This attribute, however, is too narrow, because it does not cover a whole range of phenomena, which, on the one hand, are undoubtedly social phenomena, and on the other hand, are not covered by the attribute of legal regulation. Without doing violence to oneself in favor of Stammler's doctrine, one cannot, for example, not recognize science, art, etc. etc., in general, various forms of social consciousness by social phenomena, although the sign of legal regulation in no way has decisive significance for them. I do not know whether it is possible and whether one should strive for a special establishment of the concept of social, and whether this is not unnecessary in view of, so to speak, the obvious indisputability of this concept. Human life in general is social life; history does not know social life. Therefore, the best definition of social life, perhaps, consists in the absence of any special definition, as Ihering does: “Society should be defined,” he says, “as the actual organization of life for others and through others (für und durch Andere), since each individual is what he is only through others, then society is a necessary form of life in general (für sich). thus in reality it is a form of human life.” "Human and social life are of equal importance." 40 A “social phenomenon,” which thus embraces the relationships of people among themselves in the broadest sense, becomes the subject of social science rather due to a special method of study, the desire to bring all the phenomena of social life to some kind of synthesis, considering them as properties of some single object. But if only social phenomena in their totality can form the subject of a special branch of knowledge, this naturally presupposes the presence of what we have derived as the main requirement of the theory of knowledge: the unity of a pattern that connects all the changing phenomena of social life in the unity of the subject and continuously penetrates all these changes. Thus, monism is the basic requirement and necessary condition for the very possibility of sociological knowledge. “Unravel me, or I will eat you,” says a single and continuous pattern of sociology, like the sphinx. Specifically, social life represents a motley conglomerate of the most diverse aspects and properties. Any of these properties, especially highlighted, can constitute an object of independent science, can constitute an object that has its own special pattern. Of course, this will not be the pattern that is established for all social life; it will be a pattern, so to speak, of a lower order, for it covers a narrower range of phenomena; in this way, private social sciences are created, including political economy and jurisprudence. Political economy and jurisprudence already existed when there was not the slightest premonition of the possibility of a general sociological synthesis. This historical course of things was partly the cause of the mistakes that were discussed at the beginning of the article. When the conclusions of particular social sciences were already more or less ready (or, at least, they seemed so) and when the need for a higher synthesis arose, the particular conclusions of each of these sciences turned into factors, and by adding up the action of these factors they tried to obtain a general pattern. Not only that. Not only did they try to add up the action of all factors to obtain a general pattern of social life, but they did not even bother to add up the action of individual factors, such as, for example, economics and law, which is simply nonsense. They forget that the truths of sociology and the truths of particular social sciences are established under different conditions of knowledge; if the latter come from sociology in some general methodological premises (for example, in the doctrine of laws and free will, the role of the individual in social life, etc.), and on the other hand, their conclusions can serve as data for sociology, then the very conclusions of this latter are established on completely different material, have a different subject than the private social sciences. Consequently, a general social pattern cannot be obtained by adding up the particular conclusions of individual sciences. Now it has become sufficiently clear that the theory of the relationship between economics and law should not be a doctrine about this or that interaction, it can only be a general doctrine about social life as a whole, of course, in relation, as far as possible, to the mutual relationship of the parties specifically interested in it, in this case, economics and law. Before moving on to the doctrine of the general laws of social life in relation to the mutual relationship between economics and law, we must define the latter. “Lawyers are still looking for a definition of law,” Kant once remarked mockingly. This ridicule has not yet lost its causticity, because to this day lawyers cannot agree on any one definition of law. For us, the dispute about the material definition of law does not yet matter, that is, whether it is a compromise, as in Merkel, 41 or an ethical minimum, as in Jellinek, 42 ​​or, finally, the result of the struggle of various social forces (as in Ihering, Gumilovich and Marx). A formal sign of law, which is completely sufficient here, is, in our eyes, a different protection of law is organized. Law in this sense, according to Iering’s definition, is “a form of protection of the living conditions of society, created by the coercive power of the state.” 43 The relations regulated and protected by law are different, and, in general, correspond to those divisions into which law is divided (public and private law, in the first area state, church, criminal and international law). Economic relations constitute the most important, but not the only area of ​​legal regulation. But what are these economic relations, what is an economy? And in political economy, which differs unfavorably from jurisprudence by the lack of formalism of concepts, there is no general concept of economics that would be guiding for all economists. On the contrary, the majority does not find it necessary to take into account any definition at all and clutters up political economy with material that sometimes has nothing to do with it. Social economy, which is the subject of the study of political economy, is a set of relations that arise between producers and the social process of production. The social process of production itself is not, of course, reduced only to a set of known technical techniques used by people in the production of products necessary and useful for them. Any kind of technology, no matter what is used by humanity, is used under the assumption of certain social relations between producers of a certain social organization of production - every technology in this sense is social. The same technical methods, applied in different social environments, give different social results, from which it follows that what matters for the social economy is not the technical methods themselves, but their social implementation (as is beautifully shown by Stammler). On the other hand, the social organization of production is so important even for the purely technical development of production that changes in social organization entail the need for technical changes. So, for example: a change in the forms of exchange, which means a change in the form of social union and division of labor, usually entails a change in production technology. (The change in the forms of exchange, along with the development of production, was included in the formula of the materialist understanding of history by Marx and Engels, 44 in particular its significance was clarified by later research - here, first of all, the conclusions of Bucher should be noted). Likewise, population growth, i.e. a change in the number of producers themselves (and at the same time consumers), the result of purely biological reasons, taking place in one or another social situation, also leads to various changes in technology and the social organization of production, depending on the pre-existing social mode of production, thus the social mode of production is something sui generis, it is the social production of the means of life, as it is characteristic of man. Obviously, it is impossible to say what is the exclusive engine in the development and changes in the social mode of production - social and technical aspects are so inseparably fused here; therefore, at any given historical moment, the impetus for change can come either from technology, or from the social organization of production, or, finally, from population growth. Each social mode of production, considered from the side of social organization, is decomposed into a series of relations between producers, economic relations. These relations must enjoy a certain amount of public patronage and public protection in the interests of the existence of the mode of production itself. This protection is achieved with the help of law, which covers all economic relations in such a way that these latter are at the same time legal relations and are protected by law. In this sense, law is the form of this production. At the same time, it does not matter what this right is in terms of its content and method of protection. Law in one form or another - modern Europeans or Iroquois - is as eternal in human history, in its past, present and future, as eternal is the social existence of man and the resulting need for one or another organization. Thus, economics and law are virtually inseparable; they are separable only in abstraction, which, of course, does not serve as an obstacle to their separate, special study. Consequently, their territories are not only adjacent, but even common. Law and economics are in direct contact with each other, much more than any two aspects of social life, for example, law and religion, religion and economics, etc. But if it is true that all economic relations are legal relations, then the opposite cannot be said, i.e. so that all legal relations are also economic 45 law also regulates such aspects of social life (such as family, state, church) that are not in direct connection with the existing social mode of production. In addition, an entire branch of law (criminal and trials) is aimed at preserving and establishing existing branches of law; this is, so to speak, the law of law. But no matter how the economy and the various departments of law relate to each other, there is no doubt that these aspects of social life, these phenomena have one common pattern to which they are equally subordinated - the pattern of social life. Therefore, the path to understanding the special relationship between law and economics lies through the doctrine of general social patterns, through sociology. Let's turn to this last one. The need to establish a unified pattern of phenomena in social life, as a condition for the very possibility of sociological knowledge, the highest synthesis of social phenomena, has not yet penetrated sufficiently into the consciousness of sociologists. Apart from the organic theories of society, which consider the latter as an organism and have their most brilliant representative in Spencer (I believe that for the present time they can no longer be taken into account), 46 the only teaching that actually introduces social phenomena into the system of scientific experience and satisfies the basic requirements of sociological knowledge is the so-called materialist understanding of history by Marx and Engels. Even if the sociology of the future rejects this teaching in general or in detail, nevertheless it will in any case begin in its constructions from this latter, for it is the door through which science has penetrated into a new area of ​​scientific experience. The writer of these lines thinks, moreover, that not only formally, but also in its content, the development of social science is closely connected with the development of social materialism and will be a further clarification and most precise formulation of its basic principle. This doctrine, it must be admitted, is not yet finished; or rather, its development is at the very beginning, in accordance with the immensity of the field of social experience that it has to process, and its comparative youth. But even in its present form, it sheds a bright light on the history of mankind, its modern struggle and probable future. The principle of social materialism is essentially the same as that which underlies Darwin's theory, which characterizes materialism as a modern teaching that stands in connection with the greatest ideas of the century. The main feature of Darwin's teaching is that, having rejected the doctrine of the origin of species as the result of a special creative act, he explained it by the transformation of one species into another, taking place under the influence of the struggle for existence, through the so-called natural selection. The need to struggle for life forces the species to change according to conditions, to retain and develop some qualities and eliminate others. Darwin made the concept of the struggle for existence the central concept of biology, the history of species. This, and not another concept, is the central concept of social materialism, which establishes a direct connection between biology and sociology. It was already noted above that man struggles for his existence socially, and the form of this struggle is the social mode of production. The social economy develops according to its inherent trends; one social mode of production is necessarily replaced by another. But human social life is not limited to the struggle for existence, it is not reduced to economic activity alone, it has many sides that are not directly related to production. Subjectively, these are the aspects for many that contain the joy of life, or at least its meaning. What relation do these parties have to the struggle for existence, that is, to the social economy? The answer to this question is characteristic of social Darwinism, which can rightfully be called social materialism. He makes changes in all these aspects of social life causally dependent on the struggle for life, on changes in the social mode of production. Just as the law of natural selection eliminates those properties of a species that are unprofitable in the struggle for existence and strengthens those that are beneficial, so all aspects of social life must in a certain way adapt to a given method of production and correspond to it. So, the most general formula of social materialism is approximately this: if we consider the social process as a whole, then changes in the social mode of production entail changes in all other aspects of social life, not vice versa, and these changes take place in the direction in which the new social mode of production favors, gives scope or requires. Let us now turn to eliminating some of the misunderstandings that have arisen regarding the doctrine under consideration, and in this way its further features will become clear. The most vulgar objection to the economic explanation of history is that he sees in everything one “economic”, disguised to varying degrees, and some even see an attempt to explain all of history by narrowly egoistic economic calculation. Such an explanation, even if it were possible, would have nothing to do with social materialism and therefore would be completely indifferent to proving or refuting the doctrine. A less crude but no less untenable accusation against materialism is that it “reduces” all human life to economic activity. We know of attempts to refute social materialism even by citing the fact that the human soul is inherent in such needs and abilities that cannot in any way be associated with the “economic.” Social materialists have never had the desire to reduce everything to economics or to produce everything from economics. The ability to enjoy the starry sky, the state of religious ecstasy, the selfless and boundless pursuit of knowledge, etc., etc. cannot be explained by any economic calculations. Ex nihilo nil fit, and in order to be revealed when certain circumstances occur, it is necessary that all this be at least in potency. It is necessary that the human brain at least potentially possess the system of Hegel or Kant, otherwise there is no way to explain its appearance when certain historical conditions occur. Thus, the human soul with all its diverse abilities is given in advance as the main subject of history. Many of its abilities develop only in history, therefore, under the direct influence of social conditions, others are undoubtedly of social origin; but their appearance is lost in the depths of antiquity, for example, language. 47 Much more is given. Given, for example, for each moment is the entire previous history of mankind with its spiritual heritage, a kind of cultural capital. Although this does not stop the dependence of all social existence on the social mode of production, it terribly complicates the specific course of history - it reduces, on the one hand, the originality of humanity, making borrowing more possible, and on the other hand, the entire past history increases the spiritual strength of modern humanity. It is believed that the main reason for the reception of Roman law was the pressure of the urgent needs of expanding civil circulation and the growth of commodity production; nevertheless, in order for Roman law to be accepted, it is necessary that it exist, therefore, that the whole Roman history must have taken place before. Thus, the action of economic causes naturally presupposes a certain environment, historical and mental; at the same time, this environment is the substrate on which the general pattern manifests itself. The objections described here are based on an uncritical idea of ​​reason as a force that can produce something out of itself: once the economy is declared to be the main social cause, then the ability of this economy to produce the whole of history is allegedly affirmed. This idea bears obvious traces of anthropomorphism, because the action of economic causes is here likened to human action, to the external manifestation of human will. But, in fact, causality is only a way of coordinating our ideas. The sum of ideas about the history of mankind must be coordinated in a certain way so that they all form a single whole, so that one common connection is established between all of them, of course, in accordance with the content of these ideas. This is what it means, epistemologically speaking, the causal dependence of social life on the social mode of production. Obviously, with such an understanding of the cause of dependence, it cannot in any way be said that all other aspects are produced by the central cause. Of course, what has been said does not deny the more or less strong direct influence of the economy on various aspects of life; the most precise formulation of the mutual relationship between each of the aspects of social life and the economy is, to a large extent, the task of the future development of social materialism. The relationship between economics and law will be discussed below. A new objection to the theory under consideration is the difficulty of explaining from the point of view of social materialism, therefore, by general sociological reasons, any individual historical fact. But such an objection can easily be eliminated by a simple reference to the limits of sociological knowledge. The latter is based precisely on the elimination of everything individual and its reduction to the general. Concrete ideas of history in sociology are replaced by concepts based on a more or less broad generalization of these ideas. The business of history is to accurately establish facts. Sociological explanation can only deal with general tendencies; it can indicate these general features in a separate fact, but to explain an individual fact in all its complexity sociologically would be an attempt with unsuitable means, because sociology for explanation has only the ponderous tool of concepts that kill everything individual. Therefore, the materialist understanding of history, as well as any other sociological doctrine, should be strictly distinguished from history, which, dealing only with the establishment of individual events, can already establish a direct causal connection between events, but remaining only history, cannot give them what is natural, i.e. true scientific explanation. Only by moving away from its object to a certain distance, at which individual traits merge, turning ideas into concepts, can history establish a general, natural connection, give a sociological explanation, but then it will cease to be history, therefore, by the way, one should first reject the ideal for a materialist understanding of history, according to which science will ever be able to explain materialistically any individual historical event: the philosophy of Kant, the Sistine Madonna, the poetry of Goethe, etc. For this purpose, every sociological teaching has too crude means, and the very posing of this question would reveal in the questioner a complete misunderstanding of the boundaries of sociological knowledge. Equally, the same can be said about the nature of the instructions that social science gives regarding everyday practice: it shows only a general direction, gives, so to speak, an abstract instruction, and the specific, individual implementation of this instruction - in which exactly living life trembles - cannot be captured in a scientific pattern, and is left, so to speak, to personal, unscientific discretion (special disciplines are also an intermediate link). Human activity, guided by the instructions of scientific experience (in the light of a known ideal), is the desire to transform the particular into the general, to make the concrete abstract, the individual social. And the broader the pattern, the concept of which guides a person in his activity (and, consequently, the broader his ideals), the correspondingly the degree of abstraction increases, but from the more general point of view a person views his activity. It is clear from here what significance the most general and abstract social pattern has for the concrete and individual existence of a person, for it, in his own eyes, most comprehends his little life. But let us return again to social materialism. To prove the “one-sidedness” of social materialism, they usually point to the impossibility of explaining the specific course of historical events—no longer individual events, but entire historical trends—by material causes alone. Let us even assume that changes in the social mode of production actually play the role of the primus motor of history; but once an impetus is given for this change, it will necessarily be reflected in a certain change in legal life, for example, and this change in turn will be reflected in economic life. Thus, when explaining specific historical events, interactions cannot be avoided, and economic reasons alone cannot explain all of history. I note that this objection goes further than the goal, for it proves not only the inconsistency of social materialism, but also of any other sociological theory. It was narrowly shown above that the coordination of ideas that is encompassed by the concept of “social being” can only constitute an object of lawful knowledge if all previous and subsequent states of this object are connected by a single and continuous causal connection: single - because if we assumed two or more rows of causal connection, we would thereby assume two or more objects or coordination of ideas: continuous - because, assuming a break in the course of one causal connection and replacing it with another, we assume a break in the existence of the object, therefore, we destroy the connection of previous and subsequent states that we intended to establish. This objection seeks to undermine the possibility of establishing a continuous causal relationship, therefore, a general synthesis of social phenomena, that is, sociology. Making a meaningless reference to the supposedly exceptional “complexity” of social phenomena (true testimonium paupertatis), they usually resort to an “interaction” explanation, not noticing that they are thereby abolishing the very object of their science. But, fortunately, things are not so bad for sociology. It is true that if we set out to study the specific sequence of historical events, to give them, as historians say, a “pragmatic” explanation, then we must recognize the varied alternation of phenomena that play the role of immediate causes: we will meet here the famous “keys” as the cause of the Crimean War, and “Cleopatra’s nose,” which changed the fate of the world, and “Napoleon’s runny nose” during the Battle of Borodino, and much more. And yet this is in no way an objection to social materialism, which makes historical changes dependent on economic causes. As a sociological doctrine, it strives to give events a natural explanation, while the individual events, the change of which we are talking about here, are not natural. 48 They can be established in their historical sequence and in their immediate causal emergence from one another, but in this capacity they stand outside the boundaries of sociology and are not subject to a natural sociological explanation. A logical explanation requires, first of all, the elimination of the individual, for it deals not with events, but with concepts, or, better said, with events that have lost their individual features and are depersonalized. Establishing the relationship between concepts, their natural synthesis is, therefore, a different task than explaining the immediate course of history. True, this latter provides the material from which concepts are formed, and according to it, one or another synthesis of these concepts is established. But the work of scientific explanation differs here in a significantly different character than in the previous case; the mind is already emerging from the previous passive attitude towards the material, now it actively relates to it, establishing concepts and coordination of these concepts or a pattern. He eliminates everything random, individual, leaving only the general, basic. Bearing in mind this active activity of the mind, we need to study in advance the properties of this activity and take them into account. And, according to these properties, a necessary condition for the natural synthesis of concepts, their reduction to some new and higher unity, to the highest unifying point of view, is the continuity of the causal connection, which denies the seemingly obvious facts of both alternation and interaction. 49 So this continuity does not exist in reality, i.e. in factual history, 50 it is brought in from without, by the knowing mind. But in this reality there is no alternation, singing or interaction, because in reality there are no “legal” or “economic” reasons - these are already concepts, the product, again, of the active work of the mind on cognitive material: real history does not know these subtleties, it knows only the wild chaos of alternating events, the darkness that still awaits the light of reason. Thus, the most common objection not only to social materialism, but also to sociological monism in general is based on an epistemological misunderstanding, a misunderstanding of the features of natural sociological cognition on the one hand, and an unlawful connection of concepts with individual events on the other. The same illegitimate connection lies at the basis of the “theory of factors,” which precisely means the explanation of concrete events through hypostatized abstract concepts. Thus, the visible diversity and chaotic nature of the historical process is not at all a fundamental obstacle to its monistic, natural explanation and in no way obliges us to abandon the scientific explanation, taking the point of view of interaction. Of course, it is quaestio facti whether historical science is ripe for the establishment of social laws. This is debatable. But for those who answer this question in the affirmative and for those who share the basic principle of social materialism, the acceptance of this point of view entails a requirement regarding a specific historical science: to strive in explaining historical events to reach the prehistoric subsoil - the social mode of production and its development, to those engines that are not always visible to the eye, which are hidden at the bottom of history. This principle, due to the natural development of historical science, is increasingly gaining a place in the latter, although without a strict theoretical formulation, and in the hands of representatives of the so-called economic direction it turns into a fruitful method of historical research. Concrete historical research provides material for the most precise formulation of individual aspects of social materialism. In order to avoid misunderstandings, I will note here that, putting forward the well-known a priori principles of sociological knowledge as the main condition for its very possibility, we not only do not deny the need to study specific historical material, but even think that any positive sociological teaching should be built on a solid basis of factual material of history. A broad factual foundation can be laid under the theory of social materialism only gradually; it takes time. So far this has been done only for individual and very few eras, although one would have to be blind not to realize that new and new confirmations and support points for the teaching of social materialism come from the works of its opponents. In the meantime, this teaching remains a combination of deductive considerations, mainly arising from the fundamental principles of modern natural science and philosophy, inductive data from historical research and - last but not least, what puts the stamp of modernity on this theory - observations of the modern struggle of the proletariat for a better future. Social materialism is thus the general impression of late 19th century thought on science, life, history... We are very well aware of the imperfections of social materialism, which stem most of all from its incompleteness. But we must not forget that this theory, in terms of its positive content, is the most acceptable and corresponds to the general modern worldview of determinism, Darwinism and evolutionism, alone satisfies the formal requirements of sociological knowledge, tries to establish a real social pattern, that is, to unite historical events with a single and continuous causal connection and thereby introduce them into the system of scientific experience. Numerous critics of social materialism - and he is very accessible to criticism, which, in the end, can only be useful for him - should not forget that in order to understand the scientific significance of social materialism, “a little philosophy” is required - a trait, unfortunately, little characteristic of critics (with the exception of such exceptions as Stammler). What has been said is sufficient to characterize social materialism as a sociological theory. Having outlined the basic principle of social materialism, let us dwell specifically on the question of the relationship between economics and law. We remind you once again that we are not talking about establishing a special pattern of economics and law or about a special relationship between these two “factors; we are only talking about a more detailed clarification of the doctrine of a general social pattern in relation to this particular issue. We have already seen above that law is a form of economics, the outer shell of the social mode of production. It is a means for maintaining and protecting those social relations that are necessary for the production of the means of life; in this sense, it is an instrument in the struggle for the existence of social man. (Of course, this can only be said about those aspects of law that are in direct contact with the economy). As a means, an instrument, law plays a second, subordinate role. It does not have its own regularity; its known forms exist insofar as this is caused by the requirements of the economy, and changes with changes in this latter. The well-known formalism of law, combined with its inherent conservatism, determines the very wide elasticity of individual institutions of law (an example is the institution of private property, the legal structure of which in its main features has remained unchanged from the Middle Ages to the present time, while between the relations regulated by this institution there is all the difference that exists between the medieval urban economy and the modern capitalist one). But to characterize the legal system of a given era, it is not individual institutions that should serve, but the entire set of legal norms regulating a given community: while some institutions remain unchanged, a change in others radically changes the character and meaning of the first ones, even if formally they remained unchanged. (For example, with an unchanged structure of private property rights, the extension or non-extension of property rights to people implies a deep difference between the social significance of the institution of property itself and in both cases). Finally, law is not at all reducible to written law - not to mention a whole area of ​​​​uncodified customary law; even in the field of codified law, practice determined by the needs of life can produce changes that are not always accompanied by a corresponding reform of written law: the distinction between jus strictum and jus acquum in Roman history can serve as an example of this. Nevertheless, in general and basic terms, a certain set of legal institutions is characteristic of a given social mode of production and becomes obsolete along with the latter. Thanks to the above-mentioned conservatism of law, resulting from its sociological function, social relations are actually already changing before a legal revolution occurs, which can be both revolutionary and evolutionary in nature. This social mode of production changes radically, only having finally exhausted its productive potential, only having reached the highest development that is possible for it. Life does not tolerate stagnation, it requires constant development, and if the old framework no longer gives room for this development, it is not the development that stops, but the framework that breaks - an economic revolution occurs. Within the very mode of production, contradictory tendencies develop (just as the Hegelian concept contains the seed of its own negation, into which it then passes). At the beginning of its development, this method of production is a victorious bearer of advanced economic culture (unless, of course, economic degeneration occurs, which is quite possible and history knows examples of which), then the negative aspects that accompany its dominance become increasingly stronger, and finally outweigh the positive ones, until a reform occurs, which is already reflected on the legal surface of the life of society with a number of well-known legal changes. Thus, a change in law is, so to speak, the final act of changing the social mode of production, its outer sign. Contradictory trends that exist within a given social mode of production are expressed in the relations of people whose interests are connected with one or another aspect of the organization of production, with one or another trend in the economy. A group of people united by the same interests in defending a particular aspect of production relations (and, economically speaking, having a common source of income) constitutes a social class, and the external expression of such a contradictory mode of production is the class struggle. Almost the entire history of mankind so far presents a picture of class struggle. It cannot be said that the class struggle is connected with the organization of the social mode of production by any internal necessity; at least, all attempts to elevate this struggle to such an internal necessity and present it as a general property of human relations, independent of the given organization of one or another social mode of production, do not stand up to criticism. Perhaps, in contrast to the history that has passed so far, as a “prologue to history”, “Vorgeschichte” of all future history, there lies a feature of some utopianism, a certain optical illusion, as inevitable with a broad historical as with a visual perspective, but even if we renounce all “Zukunitmalerei”, any tendentious painting of the past and present in dark colors, and the future in rosy colors, then in this case the class struggle cannot in any way be considered as constant and in this sense an eternal necessity of history as the dependence of all aspects of social life on the social economy; 51 at least, such a necessity cannot be proven; on the contrary, in each given case special reasons can be given for one or another manifestation of the class struggle. Based on what has been said, the class struggle should not be understood as a street struggle or conscious hostility of one layer of society against another, although very often the class struggle takes precisely this form: in its original source, classes are, as already said, the expression of various or contradictory tendencies inherent in a given mode of production. According to the development of this latter, the mutual relations of classes also change; a class that has only ever emerged victoriously in history as a representative of the progressive tendencies of the social mode of production, with the further development of this latter becomes the rearguard of history and already appears reactionary. In this way, but in Goethe’s many times quoted expression, “Vernunft wird Unsinn, Wohlthat – Plage.” What exactly are classes fighting among themselves for, and how is the visible struggle of contradictory tendencies inherent in the social mode of production expressed? They fight for a right, the change of which is the final victory of one class or another and outwardly registers the silent work of underground social forces. The gradual change in law in the interests of a given class expresses the growing predominance of the tendency of the social mode of production that it represents. Therefore, law is born in struggle. But here I can speak in the eloquent words of Ihering: 52 “in all cases where existing law is connected with interests, new law makes its way through a struggle that often lasts for centuries. It reaches its highest degree of intensity if interests have taken the form of acquired rights. Here two parties are opposed, each of which bears on its banner the motto of the sanctity of law, but one refers to historical law, the law of the past, the other to the ever-born and renewed law, the primordial right of humanity to create a new law - a conflict of the legal idea itself; this conflict, in relation to those subjects who put all their strength and their whole life behind their convictions and, in the end, are subject to the supreme court of history, takes on a tragic character. All the great acquisitions that can be noted in the history of law: the fall of slavery, serfdom, freedom of land ownership, industry, religion, etc. - all of them had to come into life through this cruel century-long struggle, and the path of law is marked by streams of blood and fragments of law. For “right is Saturn, devouring his children” (Geist des rümischen Rechts, II, I, § 27), and law can only be renewed by renouncing its past. A concrete right, which, once it has arisen, demands unlimited, therefore eternal, domination, like a child raising his hand to his own mother. It tramples on the idea of law, calling for it, for its idea is an eternal emergence (ewiges Werden) and, once it has arisen, must give way to the newly arising, for Ist werth, dass es zu Grunde geht. (Kampf ums Recht, 8 – 9). And in this struggle, in which each of the fighting parties puts its demands in the form of ethical postulates, however, “as in any struggle, it is not the weight of the arguments that wins, but the relationship of the forces of the fighting parties, and therefore the same result is often obtained, as with a parallelogram of forces: a deviation from the original lines towards the diagonal” (ib. 7). If the life of law is a struggle, a struggle of classes for their economic interests, then, obviously, the state of law at any given moment, so to speak, law in cross-section, will appear as a compromise, which is what Merkel considers it to be. 53 The stated position could be illustrated by a number of examples. The class struggle manifests itself most obviously in the factory legislation of all civilized countries, which is an accurate indicator of the balance of forces of social classes. The reader saw that organized state protection is a necessary feature of law. II indeed, if law represents a necessary way of resolving the struggle of classes, a compromise on which they are reconciled from time to time, then the main organization, the mechanism of law, its direct creator and guardian is the state. The state is a known organization of society, it is not something standing above society, as was previously thought, and many still think (this was clear to L. Stein already in the 40s of the last century). And if society consists of classes, then the state is an organization of classes, and if the usual relationship of classes is struggle, the state is an organization of struggle of classes, and since in this struggle the obvious victory and dominance belongs to any one class, then naturally in the hands of this class the state turns into an instrument of class domination, while the form of this domination is a matter of secondary importance and only practical expediency: does a given class dominate directly, through its representatives in parliament, or does it not take any direct part in government - the form of government can be completely unlimited, and yet the nature of the policy will be determined by the interests of the dominant classes in society, on which virtually every government depends. The same state organization can be a suitable instrument for protecting the interests of different classes, and, conversely, a certain political organization that is beneficial for a given class in one era becomes cramped for it later. The state and, above all, the legislative function of the state is the general channel along which modern life flows. Class struggle, clothed in a state framework, if we exclude revolutions, 54 is an extremely legal struggle, a struggle because of laws and on the basis of the law. Even the desire of this class for a radical change in the social mode of production is a desire, first of all, for a certain legal reform (for example, the desire of socialists to abolish private ownership of the instruments of production). But if so, if even aspirations for economic reforms are expressed in the form of certain legal aspirations, does this not mean that the pattern of economic life lies in changes in character? It would hardly occur to anyone to say something like that. The history of any major legal reform shows that it was economically necessary when it was made. In this case, it is, of course, a quaestio facti, of greater importance for contemporaries than for a sociologist, whether the necessary economic reform occurs all at once and “from below,” like the great French Revolution, all at once and “from above,” like the liberation of the peasants in Russia, or gradually over a number of decades or centuries, as serfdom died out in England. The ever-growing field of comparative historical study of law brings new evidence of the validity of the point of view expressed. The existence of very similar legal institutions is stated in different countries, at different times, among different peoples, but under similar economic conditions. There is less and less room for the “folk spirit” and similar explanations of an unrealistic nature. One can generally say in the words of the Munich professor Brentano, with which he objected to Gierke, who saw in the Anerbenrecht Institute the peculiarity of only German law and explained it by the special properties of the German folk spirit: Mr. Gierke sees in what he calls German inheritance law an expression of the legal spirit peculiar to the German people, the special German folk soul; I see in it nothing more than a reflection (Niederschlag) of a certain stage of economic development in law, and it is repeated among all peoples at the same stage of economic development.” 55 Until now, we have been talking about that area of ​​law that is in direct contact with the economy and whose changes, being causally dependent on changes in the economy, at the same time directly coincide with these latter. But we have seen that not all law is in such contact with the economy. As for the departments of law that are not in contact with the economy, and above all criminal law and processes (we have already discussed state law), then, obviously, this area of ​​legal technology (in the broad sense), law, which has the special purpose of protecting and restoring violated rights, is dependent on the branches of law protected by it, being determined, on the one hand, according to the purpose of its existence, on the other, according to the source of its origin. The goal is to protect certain foundations of society, a certain order of economic and social relations that requires. by its characteristics, one and not another method of protection. Our old red-tape legal proceedings were, for example, an unsuitable means for protecting the relations of developing commodity production and were abolished, while under serfdom, despite all the shortcomings, it obviously satisfied the goal of protecting weak civil turnover. The source is the state, which, as has already been shown, represents the organization of class domination. The character of this state, the predominance of one or another class in connection with well-known historical traditions, determines certain features, for example, of the criminal code. Finally, such departments of law as church law, family law, which precisely regulate those relations that depend on economic development along with all other aspects of social life, change along with its general changes, therefore, are only indirectly subject to dependence on economic relations. In particular, the relationship between the family and economic systems has long been a favorite topic of research for materialist historians. 56 We must limit ourselves here to these remarks of a fundamental nature; their more detailed formulation is possible only in a more specialized presentation. Based on what has been stated so far, the reader will make a fair conclusion that law does not have its own special pattern and is subordinated in its development to the economy. Does it not follow from this that there cannot be a special science - jurisprudence, and that law does not require independent study, which should simply be replaced by the study of economics? This conclusion would only reveal a lack of understanding of the significance of the conclusions drawn. The answer to this question should be that when studying economics, you do not study law at all, for the simple reason that they are not identical: economics does not contain rights for itself. Not only that. Both (and any third), they are all equally abstractions - from the only sociological reality - of the whole social life, the theory of social materialism does not say at all that all social life consists of one economy, but that, although social life consists of many sides, the concept of social life is a synthesis of very different features, but there is the possibility of considering them all as properties of one object, actually united by a common pattern, which boils down to the dependence of all its sides on one side - the social economy. And economics, and law, and any other aspect of social life in this respect are equal, as properties or aspects of social life, they have, from the point of view of social knowledge, an unequal degree of reality, namely, as just said, they equally do not constitute reality, which remains only social life as a whole. But they can be made real realities - both economics and law, and they actually become such in special sociological disciplines: jurisprudence and political economy. And, obviously, along with independent reality, they receive their own special pattern, which represents, so to speak, a passport of reality. And as many of these passports can be issued to various aspects of social life as the sovereign ruler of reason wishes, for the pattern does not fly in the air, where positive sociologists hope to catch it, but is adopted by the mind, although, continuing the comparison used, the mind here also has to reckon with cognitive material, just as the absolute ruler with the social classes of his state. Regularity - we should never forget this - is only a special way of coordinating ideas of either a narrower or a wider range of phenomena. Therefore, no formal objection can be raised against a special study of any range of phenomena; it can only be made from the point of view of expediency. From the point of view of expediency, for example, great doubts can be raised about a discipline that would set out to establish the regularity of the use of the word “but” in the Bible; from the formal side, such a “but”-logy would have as much right to exist as sociology. But such doubts, of course, cannot be raised regarding political economy and jurisprudence - their practical importance is indisputable, therefore, the special study of both law and economics does not encounter any obstacles. Jurisprudence studies law specifically from the perspective of those features that characterize it as such. It is in this relatively narrow sphere that her teachings have power. Everything that crosses these narrow boundaries invades the field of sociology (for example, the question of the relationship of law to other aspects of social life). Therefore, what the science of law teaches, sociology is not competent to teach, no matter what religion - idealistic or materialistic - it adheres to. The special subject of jurisprudence is, as it were, concrete and individual in relation to the general concepts with which sociology deals, so that it views it from its general point of view. In exactly the same way, the “general part” of any law does not set out its individual institutions, but the general theory of law does not set out the special teachings of individual branches of law. So, for the first time, the paradoxical proposition receives full force: law does not have its own special pattern, and law has its own special pattern. This is where there is interaction, opponents of sociological monism tell me. This means that you also recognize the interaction of a general social law on the one hand - even if it really lies in the laws of the economy - and a specifically legal law. The “interaction” between general and special patterns and therefore the relative independence of individual aspects of social life plays the role of the main trump card in the argumentation of opponents of monism, although, of course, not in such a simple and clear, but in a more complicated form. This argument is based on a simple epistemological misunderstanding. A regularity is a way of coordinating in a certain way a series of representations. Suppose now that you have a coordination of ideas “social life”, coordination consists of a number of ideas - roughly speaking - economy, law, science, etc., put into mutual connection. This connection is a sociological law, which states that the law of social phenomena is the law of economic phenomena. Naturally, the ideas that are included as cognitive material in the concept of social life are distinguished by a high degree of abstraction, which is necessary in order to be able to cover the entire social life in one concept. This may be sad, the concept is Nothbehelf, an auxiliary means of our mind, which is faced with the need to navigate in too large a range of phenomena, but this is a fact that everyone who begins to study sociology comes to terms with in advance. To survey the picture of the entire city, you need to climb very high, and although only general outlines are visible, the details merge in the fog, but you can see the mutual relationship of the parts of the city. If you want to view a particular part of the city, you will of course go lower; you will see here many details that you did not see from above, but the connection of this part of the city with the rest will no longer be clear to you: you see the same object (or, better said, part of it), but completely differently than the first time. Both times you will draw different conclusions about the same subject, and yet both conclusions will be correct, they do not compete with each other, because they lie on different logical planes. That is why it is possible to assert that there is a general sociological law that denies an independent law, and along with this there is a special legal law, and there is no contradiction between these statements, and there is no “interaction” between both types of law. The apparent contradiction is thus eliminated by clarifying the meaning in which the contradictory statements are made. General and special patterns are established under different conditions of cognition. 57 But I will please the supporters of interaction and recognize the interaction (or, better said, the cumulative action) of a general and special law where it really takes place, and not in the sphere of knowledge, a logical system, but in life, in the soul of the knowing subject. For, since such a subject has to be not only a spectator, but also an actor, not only talk about life, but also live, he must use the joint instructions of the sciences, which establish both a general and a special pattern. The first gives him general, guiding points of view, the second orients him in the circle of those special phenomena among which he must work. To achieve the concrete, which is life, you need to descend from the upper floors of abstraction to special knowledge. But the direction and distant goal of the path are visible only from above... Ihering. Der Zweck im Reeht. I te Band, 2 te Auflage 87–88. 1884. The last italics are mine. Merkel. Elements of the general doctrine of law. Kharkov, 1896. Jellinek. I ie sociaethische Bedeutung des Rechts, Unrechts und Strafe. “Das Recht ist nichts anderes, als ethisches Minimum.” Page 42. Zweek im Recht. I, 443. On page 511 we find the same definition: Recht ist der Inbegriff der mittelst äusscren Zwanges durch die Staatsgewalt gesicherten Lehensbedingungen der Gesellschaft im weitesten Sinne des Wortes. See, for example, Engels. E. Dühring's Umvälzung der Wissenschaft, 2 Aufl. S. 253. Unfortunately, in their formula these two concepts are only placed side by side, but are not logically united in a generalizing, higher concept. It seems to me that the concept of “social mode of production” in the sense that it has in the present presentation (see below) can be such a unifying concept that should be placed at the forefront of the materialist understanding of history. Stammler extends the concept of economy to all aspects of life, so that economy is for him the only matter of social life. Such a dissemination of the concept of economy, very controversial from a purely logical point of view, is useless from the point of view of research, because it represents such broad brackets, such a degree of abstraction in which, like at night, all cats are gray, and the generality of the conclusions borders on their meaninglessness. The merit of organic theories of society, not appreciated in Russian literature, was that they presented with extreme clarity the idea of ​​the natural development of society, independent of the subjective ideals of this or that sociologist, although the formula for this development was, of course, incorrect. It is not surprising that Spencer’s theory at one time met with the rarest criticism from Mr. Mikhailovsky, the head of the subjective sociological school. The ability to think and the development of the brain are also the result of the struggle for existence, a conjecture in metaphysical form expressed by Schopenhauer, and in modern times supported by Riehl and Simmel. Obviously, the concept of historical contingency is a fascinating topic for a sociologist! – is completely correlative to the concept of regularity: what is random is what is not regular, that is, not provided for by this particular regularity, is not included in the given coordination of concepts. Therefore, on the one hand, there is no absolute randomness in the world, everything is natural, on the other hand, randomness exists only where there is a pattern, constituting, so to speak, the boundary of this latter. The desire of science to reduce the individual and accidental to the general and fundamental, - specific ideas to concepts - is also consistent with ordinary everyday practice, when we speak ten times a day as the immediate cause (or reason), for example, the disease N was a cold or bad weather; but the main reason was exhaustion of the body. This everyday practice of reason, resulting from its basic properties, is preserved in scientific research, but, of course, under strict methodological control. If by “reality” we mean the so-called factual history, although it is not clear why this history has a greater degree of reality than such a depiction of historical events in which some individual traits are missing (especially since it is not possible and will never be possible to list all individual traits in factual history, and they are forced to limit themselves to selecting only some traits as more important). From our point of view, history can have, subject to the norms of objective cognition, an equal degree of reality. Pilate's question: “What is truth?” - one of the central problems of the theory of knowledge, should rightfully be supplemented with the question: what is reality? – the second central problem of the theory of knowledge. A feature of undoubted utopianism is in the doctrine of the leap from the kingdom of necessity to the kingdom of freedom (a doctrine that bears such obvious traces of Hegelian dialectics, without, however, a metaphysical justification for this latter), according to which from a certain moment this dependence also ceases. Such a statement logically undermines the deepest foundations of social materialism, reducing it to the same derivative, and in this sense, accidental feature of given historical eras as the class struggle, and depriving materialism of the connection with Darwinism in which the former finds such strong support. However, there is nothing compromising or unattractive in itself about this dependence; the whole point is only in the special form of this dependence. Iering contrasted the idea of ​​the painless development of law, a historical school that had the formal merit of the first attempt to find a formula for the natural development of law, in contrast to the occasionalistic ideas of the rationalists of the last century, with the doctrine of law as a struggle, thus drawing closer to the school of Marx, whom he, unfortunately, did not know. The narrowness of Iering's general worldview prevented him from deepening his teaching and, most importantly, giving it sociological support - Iering was too much of a lawyer for this. Therefore, the coincidence of the views of Iernng, who also subsequently significantly changed his views, with the teachings of Marx is not deep, although in some cases they both speak even the same language; for example, the following comparison by Jernng: “The birth of law, like man, was usually accompanied by severe labor pains” (Kampf ums Recht, 12) repeats Marx’s famous expression about the birth pangs of the new society. A comparison of Ihering’s views of the “Kampf ums Recht” period with the views of Marx and Engels, unfortunately, is too general, is made in Novgorodtsev’s dissertation: “Historical School of Lawyers,” M. 1696. There is also a detailed analysis of successive changes in Ihering’s views. See Elements of the general doctrine of law. Kharkov, 1896, p. 28. The English people consider themselves to have the right to revolution or the right of rebellion, so from a strictly legal point of view, revolution here is a lawful act, an exercise of law, a legal way of protecting it. Brentano. Ueber Anerbenrecht und Grundeigenthum. Separatabdruck aus "Zukunft". Berlin. 1895. Pp. 12. Some branches of law occupy an intermediate position between these, so to speak, economic and non-economic departments of law: for example, inheritance law, which entirely follows, in its basic principles, from the existing economic system, but at the same time depends on the nature of family law (for example, the legal position of a woman in the family), also economic departments of international law, etc. What has been said is valid, of course, not only in relation to legal law, but also to any other special law.