The state, however, like law, is phenomenawithout which today's existence of nations is unthinkable. Therefore, legal scholars have attempted to determine their formation, which began, by the way, before the Common Era. Therefore, a number of theories have been developed, explaining the origin of the state and law.
The first theory is divine, it istheological. According to her, the reasons and conditions for the emergence of the state and law were laid by the supreme reason. Or, based on the fact that the founder of this theory was Thomas Aquinas, the will of the Lord God. It was believed that the state is the highest form of organization of the people, and the covenants transmitted by God must take the form of law. At the same time, the state should be managed by the only person - the monarch, who is essentially “the vicar of God on earth”. This theory perfectly reflected the realities of the Middle Ages. It is worth noting that in the modern world there are states that are built on this basis. However, they reflect not only the Christian faith.
The second theory is patriarchal.The origin of state and law, according to her, is based on the postulate of the sacredness of the family. So, the ancestor of the state is the family, which in the course of its development has grown to the size of the country. And the source of law according to this theory is the will of the father of the family (the patriarch). In principle, for the period up to the twentieth century, such views had the right to be, and even more, were supported by the very fact of the existence of absolute monarchies. The history of state and law of Russia partially confirms this theory.
The third theory, it is a theory of violence.According to her, the causes and conditions for the emergence of a state lie in the principle of the survival of the fittest. The authors, among whom was K. Kautsky and E. Dühring, argued that in the process of development of human society there was always a need for the subordination and leadership of the strongest over the weak. That is why the apparatus of “legalized violence” and the norms that established the actions of the strong, which later received the status of law, were created.
Теория четвертая – патримониальная.It is based on the fact that the origin of the state and law is based on the right of ownership of land plots. Thus, the formation of the state as a legal phenomenon is due to the fact that most of the lands suitable for cultivation were concentrated around one individual. The rest were forced to take these areas for rent on the terms put forward by the landowner. It is these conditions that later received the status of law.
The fifth theory, it is also negotiable.The origin of the state and law was based on a social contract. J.-J. Rousseau, Hugo Grotius and many other Enlightenment activists gave the world the idea that the state arose due to the fact that at one point people agreed to unite in a special organization and transfer part of their rights to manage a certain group of the most prominent individuals. As a result, the latter has developed acceptable standards for the majority, which have become law.
The sixth theory is psychological.Spencer, Trubetskoy, Petrazhitsky and Freud indicated that a state could be formed only on the condition that some wanted to govern and others - (in a much larger number) to obey. They explained this by the fact that the character of a person is arranged either according to the first principle, or according to the second. And therefore it is necessary to create a structure that would take into account the above trends.
The seventh theory is materialistic.Nominated by Marx and Engels, she explained that the state emerged from the transformed primitive communal system, and the right from privileges and taboos. The impetus for such changes were socio-economic factors.
This is not to say that any of the theories isonly true. The history of the state and the law of Russia more than once proves this postulate. After all, in-depth study provides an opportunity to confirm both the elements of the materialist theory, the postulates of the theory of violence, and the arguments of the patriarchal and patrimonial ones. What once again proves that the problem of the formation of the state and law is still to be worked out.
