On the Validity of the Separation of the Cathegory "Origins of Law" in the Theory of Law and State

Sheptalin Aleksei Aleksandrovich ORCID: 0000-0001-5442-6160 PhD in History Associate professor, Department of Theory and History of State and Law, Udmurt State University 426034, Russia, respublika Udmurtskaya, g. Izhevsk, ul. Universitetskaya, 1, korpus 4, of. 341 sheptalin@list.ru Other publications by this author

One of the manifestations of the progressive development of the science of the theory of state and law, despite its certain conservatism, is the discussion that has unfolded in Russian historiography about the origins of law. Back in the Soviet period, i.e. with the apparent dominance of the quasi-Marxist positivist approach in the understanding of law, this topic was touched upon in connection with the question of the sources and forms of law, but it attracted relatively wide attention of domestic researchers only relatively recently ^{[9, 13, 17, 18]}. Undoubtedly, the study of the origins of law should reach a new level after the approval in the scientific community of the long-awaited collective monograph "Origins and Sources of Law: Genesis and Evolution" ^[7], published in the spring of 2023. Meanwhile, in foreign historiography, the search is not for philosophical and speculative, but empirically visual sources of law, appearing in discussions under various terms (the origins of law, the germ of law, the beginning of law, etc.) have been used at least since the first publication in 1861 of the famous book "Ancient Law" by the founder of legal anthropology G. S. Main ^[29].

The relevance of the stated topic is due to the fact that the phenomenon of the origins of law is ignored for objective reasons by the majority of supporters of the various directions of the positivist approach prevailing today in domestic jurisprudence of the positivist approach, who, according to the correct remark of V. M. Syrykh, still prefer to explore modern problems of jurisprudence through a formal dogmatic analysis of laws and other sources and leave out due attention the processes of the implementation of law in specific relationships and socio-legal factors that limit the will of the legislator ^{[20, p. 15]}.

Moreover, even authors who adhere to other approaches either ignore the phenomenon of the origins of law itself, or use terms similar in meaning to designate it: "prerequisites" ^{[4, p. 74]}, "first forms of law" ^{[10, p. 80]}, "source of law" ^{[19, p. 216]} and others . It is important to note that a significant number of Russian jurists use the polysemic term "source of law", including to designate chronologically original early legal norms, such as custom, legal custom, precedent, judicial decision, etc., which "characterize the origin, genesis of law" ^{[8, p. 4]}, including the formation of religious legal norms systems ^{[15, pp. 43-47]}.

Similar to the discussion of sources and forms of law that has been going on since the 19th century within the framework of monistic and pluralistic approaches, a multidimensional, including categorical and terminological, polemic about the essence of the origins of law arose in post-Soviet jurisprudence. Some authors understand them as a wide range of "circumstances that caused the emergence of law and its effect" ^{[9, pp. 35-36]}, including natural-geographical, demographic, cultural, psychological, ideological, economic, political, military and other factors. In fact, in this case, the origins of law are understood as "a stable and subjectively determined set of various law-forming factors" ^{[18, p. 25]}.

Other authors believe that the origins of law should be sought in the "origins of rulemaking", in the substance that generates law, considering that "society, the people are the basis for the formation of law, its main source" ^{[3, p. 49]}.

The third, "philosophical" group of authors refers to the origins of various a priori and ontological foundations that give rise to law "as a trans- and cross-cultural phenomenon of preserving the human ability to coexist and preserve one's sociability" ^{[6, p. 29]}. Philosophers, starting with I. Kant, mention such an objective basis as individual freedom, as well as subjective grounds, the expression of which is "the willingness, the will of individuals and the peoples they form to actualize their potential legal essence, to complete the genesis of their human nature, to transfer law from possibility to reality – its implementation in social relations" ^{[14, p. 170]}.

Finally, another group of authors, the "historical and anthropological", tends to see the origins of law in the social norms of ancient times ^[1], and even in primitive customary law ^[4], in particular, in primitive taboos ^{[25, p. 214]}, or in the quasi-legal beginnings of a fundamentally new regulator of social relations which arose with the advent of the institution of private property during the "Neolithic revolution" ^[21]. Moreover, in this case we are talking not only about the events of 9-4 thousand BC, but also much later, almost modern periods, since the history of law since ancient times is cyclically repeated according to the same schemes ^{[24, p. 1]}.

It should be recognized that each of the above positions has the right to scientific existence and use insofar as in the Russian language the term "source" has different interpretations, as well as the term "law". At the same time, the selected groups differ from each other not only due to different approaches to legal understanding, which is more noticeable when considering the sources of law (see appendix: ^[11]), but also within the framework of one approach due to a different understanding of the "origins" themselves, due to the variety of ways and forms of external expression of law.

Since one of the important tasks of the science of law theory is the permanent optimization of the conceptual apparatus, the purpose of this article was an attempt to substantiate the need to isolate the "sources of law" from a vast and diverse category of sources of law. At the same time, it is proposed to replace philosophical and speculative arguments in the discussion with empirical data from legal anthropology, which make it possible to much more clearly define the line between pre-legal regulatory regulation and quasi-legal/early legal rudiments of a new regulator of social relations, to define a line qualitatively separating the legal customs that arose from the egalitarian regulatory regulation of a generic society – mononormatics.

It is possible to understand the question of the origins and chronologically oldest sources of law only through the methods of legal anthropology, which studies the socionormative culture of synpolitical (modern) primitive ethnic groups, as well as its remnants in more socially advanced ethnic communities (see subsections: ^{[5, 21]}). This is facilitated by the concept of multilinear neo-evolutionism, which allows for the correct generalization and use of ethnological materials on modern primitive societies both for the reconstruction of the pre-written past of mankind as a whole, and for the reconstruction of the genesis of law and the state, in particular.

Upon a detailed examination of the normative culture of synpolitical societies in their stadium development, the difference between the principles and systems of normative regulation of early primitive (tribal community) and late primitive (neighborhood community) societies becomes obvious. In the first, with its simplest socio-economic relations, equally simple, accessible and generally understandable mononorm customs were enough for effective regulation, and law, according to American jurist W. Sigl, in such a primitive society would look like "excessive luxury" ^{[35, p. 289]}.

In the era of the formation of modern science, in the wake of evolutionism in the second half of the XIX century, one of the first who tried to oppose concrete arguments from history, ethnology and anthropology to representatives of various legal schools and theories based on speculation was the famous English lawyer and sociologist of law G. S. Main. Based on the analysis of ancient and Hindu sources, he was actually the first to declare that law arises as a result of separation from morality and religion ^{[29, p. 14]}. Being a great connoisseur of ancient Greek and Roman material, he saw there the first manifestation of law in the decisions of the royal courts – the themists (named after the goddess Themis), which influenced the further formation of legal customs. Moreover, Main emphasized that the themists preceded the emergence of customs, "no matter how strongly we with our modern ideas may be inclined to assert a priori that the concept of custom should precede a judicial decision, and that the court should be based on custom or punish for its violation..." ^{[29, p. 4-5]}.

The materials of legal anthropology on Early Neolithic tribes repeatedly confirm that judicial precedents were the basis of the legal customs that were formed. Thus, the famous American lawyer K. N. Llewellyn and the equally famous anthropologist E. A. Hebel noted in their joint work that carefully selected and studied problem cases are the most reliable way to comprehend the phenomenon of law ^{[28, p. 29]}. As a justification for these words, we can cite a specific case described by these researchers among the Cheyenne Indians, when the council of chiefs, faced with the impossibility of resolving the conflict that arose between the two warriors, established a "new rule": you can not take horses without asking, otherwise the violator, in addition to forcibly returning property, was severely physically punished ^{[28, p. 127]}.

The mentioned case clearly demonstrates that the institution of property at that time had just begun to be established in Cheyenne society and required completely new legal customs, since it could not be regulated by the previous equalizing mononorms. The institution of property literally corroded the disappearing unity of the tribal community from within, giving rise to numerous conflicts, new social relations, as well as regulatory institutions and procedures. It is important to note that such problematic cases, recorded in various native tribes by colonial administrators, scientists, travelers, missionaries and other eyewitnesses in the XIX – early XX century. XX centuries, and testifying to the emergence of the rudiments of law long before the emergence of the institution of the state, there are many materials of legal anthropology from different parts of the ecumene ^{[12, 23, 26, 27, 30-34]}.

Although the objectives of this article do not include the search and determination of the actual origins of law, it should be noted that the author's position strongly links them with the socio-economic consequences of the so-called Neolithic revolution ^[21]. In English-language historiography in the first half of the 20th century, the opinion became widely known that the Neolithic "court", including variations of voluntary arbitration on commercial and raw materials disputes closely approximated to the court ^{[36, p. 34]}, resolving disputes and conflicts unresolved by any norms within the entire tribe, became a generator of precedent decisions, practically in no way associated with old myths, gods, or heroes. On their basis, both spontaneously and purposefully, through the tribal council, fundamentally new casual legal customs were formed in terms of content and structure, aimed not so much at physical punishment or exile as at conflict settlement, payment of a fine and material compensation.

Supporters of positivism, which dominates in Russian jurisprudence, are unlikely to agree with such an opinion due to the fact that, contrary to objective historical and anthropological facts, they continue to firmly link the genesis of the institute of law with the institution of the state. However, in this case, I would like to draw the attention of the scientific community to the point that, regardless of belonging to a particular school of legal understanding, it should be recognized that the institution of law had its origins, the phenomenon of which requires separate scientific consideration, and not only in the context of sources of law.

With the formal variety of interpretation of the term "source" in the dictionary of the Russian language, there are two main meanings: in the literal, hydrological, and figurative sense – "the beginning, the primary source of something." In such a connotation, a certain genetic unity should be traced and it is quite obvious that neither society nor the people, nor numerous factors and circumstances, simply cannot act as the sources of law, since they semantically belong to other categories. It also seems incorrect to search for the origins of law in the will, since this philosophical approach does not draw a clear line between law and the socionormative regulator that preceded it. In addition, the will underlies almost any conscious and purposeful activity of both the individual and the collective.

Just as the beginning of a river is a stream, and human life is infancy, it seems correct to consider the origins of law as a genetically determined chronological beginning of the phenomenon of law or, according to S. S. Alekseev, "historically primary sources" of law ^{[2, p. 204]}.

With regard to the category of "sources of law", it should be noted that its excessive polysemy is today one of the problems in the theory of state and law, as evidenced by the continuing tendency among many jurists and violating semantic logic to identify forms and sources of law. So far, the understanding of this phenomenon, even among positivist authors, varies in a wide range. The most common binary division of sources of law into primary and secondary, domestic and international legal, basic and additional, official and unofficial, written and unwritten, traditional and non-traditional, typical and atypical, classical and modified, etc. ^[16].

Obviously, in this series, the division of sources of law into "primary" (in English–language historiography - origins of law), which once laid the foundation for the institution of law in ancient times, and "secondary" (sources of law), functionally fueling law up to the present, stands somewhat apart. On this basis, regardless of the approach to understanding law, it seems logical to separate the "primary" sources of law into a separate theoretical category of "sources of law" with the prospect of its consolidation in the theory of state and law.

As for the practical significance of such a separation, then, paradoxical as it may sound, perhaps it is the search and factual identification of the chronologically oldest sources of law in the transformed system of normative regulation of a potestar-early class society that in the future is the key to an attempt to develop, if not generally accepted, then relatively universal, integrative definition of law.