Lectures on Jurisprudence: The Origin of Law [School of History and Law]

First, various theories on the origin of law and their relationship with the theory of legal essence.

1, the main theory about the origin of law:

(1) Creationism is the personalized creation of superhuman strength, and various gods create laws for mankind.

○ 1 In Cicero's view, natural law as rationality comes from God's rationality, and human law comes from natural law.

2 medieval theologian Augustine proposed that order and arrangement come from God's eternal justice and eternal law, that is, divine law; Human law obeys divine law and comes from divine law.

China had a similar understanding in ancient times.

(2) The theory of violence is the result of violent struggle and the product of violent rule.

Han Feizi, a representative of China Legalist School, said: "People are poor, but goods are poor, and people struggle because of labor." There is a rule that conflicts need to be resolved only when there is struggle and violence.

(3) Contract means that human beings enter the political society from the natural state, and for reasons of security and development, they conclude contracts with each other and form a government. This initial contract is the law.

17 and 18 centuries, most classical natural law scholars hold this view. -This theory still has some influence.

(4) development theory

① Theory of human ability development: With the development of human ability, social relations begin to become complicated, so laws are needed.

(2) the theory of spiritual development:

A. Hegel believes that only when the absolute spirit develops to the natural stage can there be human beings, and the development of human spirit produces law.

B. The national spirit theorists suggest that the law originates from the national spirit or historical tradition.

(5) Rational management theory Many legal sociologists hold this view. Selznick, a contemporary American legal sociologist, believes that the legal order of groups is developed based on the needs of rational management.

2. Marxism believes that law came into being with the development of productive forces, social and economic development, the emergence of private ownership and class, and the emergence of the state. It has gone through a long and gradual process.

3. There is inherent consistency and correspondence between various theories about the origin and essence of law:

Creationism is consistent with theology's view of legal essence, which is the main content of theological jurisprudence; Contract theory is the view of natural law school, which is closely related to the rational view of legal essence.

Second, the social organization and social norms of primitive society

1, Marxism believes that law does not exist forever, nor does it exist forever, but it is a social phenomenon that only appears when human society develops to a certain historical stage.

2. Marxism believes that the social norms of primitive society are fundamentally different from the laws of class society.

Third, the process and symbol of law.

(A) the root of the law

The root of economy is the most important and main root. Economic life is the most important life in human social life, and the development of productive forces is the fundamental force to promote what kind of economic life. For example, the exchange during the period of economic backwardness is arbitrary and accidental. This kind of communication is true and equal to all participants. With the development of economy, a new form of exchange has emerged, which has rules. On the surface, it is the same for all participants, but in essence, this exchange is beneficial to those who master the exchange items first. In other words, the nature of exchange rules has changed. In order to show the difference between the new rules and the previous rules, later generations called the new rules law.

1, private ownership and commodity economy are the economic roots of law.

2. The emergence of class is the class root of law, also called political root.

3. Social development is the social root of law.

(two) the main signs of the law

The special public power system, that is, the emergence of the state, the formation of the concept of rights and obligations, and the emergence of legal procedures and justice, is the main symbol of the emergence of law.

1. The special public power system is the emergence of the state.

(1) The custom of primitive society is naturally formed, and it is guaranteed to be implemented by virtue of the inner beliefs of clan members, the behavioral inertia developed from childhood and the prestige of clan leaders, and its role is limited to the clan;

(2) Laws are formulated, recognized, implemented and guaranteed by the state, and the scope of application of laws is defined according to the areas within the reach of state power.

2. The formation of the concept of rights and obligations.

(1) In primitive society, people acted according to their habits, regardless of their rights and obligations.

(2) Now, the concept of rights and obligations has been formed among social members, and the separation of rights and obligations has emerged.

○ 1 There are "mine", "yours" and "his" in the ownership of property;

○2 There is inequality in the distribution of benefits (rights) and burdens (obligations), that is, there is privilege;

○3 There is a clear difference between enjoying rights and fulfilling obligations. Some people (nobles and rich people) only enjoy rights, while most people only assume obligations.

3. The emergence of legal procedures and justice.

It indicates that public relief replaces private relief, civilized litigation procedure replaces brutal violent retaliation, disputes between people can be resolved through non-violent means, and social development is based on rationality.

(C) the main differences between laws and primitive social norms

1 & gt； The two are produced in different ways. The emergence of law is a conscious process, and the emergence of primitive social norms is a spontaneous process.

2> Both reflect different interests and wills.

3> Both have different forces to ensure implementation.

4. The scope of application of the two is different.

Fourth, the general laws of law.

1. The emergence of law has experienced a development process from individual adjustment to normative adjustment, and from general normative adjustment to legal adjustment.

2. The emergence of law has experienced the development process from custom to customary law, and then from customary law to written law. [Difference: Custom and Customary Law]

3. The emergence of law has experienced the integration of law and religious norms and moral norms to the differentiation of law and religious norms and moral norms and the relative independence of law.