Kharitonov Alexey Sergeevich

Assistant lecturer of public and legal disciplines Law Institute of Vladimir State
University of Alexander Grigorievich and Nikolay Grigorievich Stoletovs, Russia

The ontological approach to the justification of law in K.P.Pobedonostsev’s legal theory

Currently, the conservatism in Russia is of great interest, being a lively debate, written monographs and scientific articles available on this topic. Freed from the ideological dogmas, history had an opportunity for an objective understanding of the topics that had previously remained on the sidelines of scientific knowledge.
Russian conservatism of the second half of XIX century. appeared on the background of the liberal-progressivist and radical democratic theory. The main objective of this direction was the foundation of the theory of “organic” development of peoples and nations, as well as the rationale for the fruitful role of the “national spirit”, the force of which the individual lives and in which is the embodiment of “the organic conception of the world” people. The originality and uniqueness of the individual, according to the ideas of Russian conservatives, is the product gave rise to its cultural and historical reality, “soil”.

Philosophy and other spiritual phenomena appear as “organic product of the century and the people in connection with the development of the state, public and moral concepts”, said in this connection, the poet Apollon Grigoriev, one of the first developers of the philosophy of “pochvennichestvo” [9;106]. The idea of the identity of national cultures, “organically” developing in time and space, has become central in the political and theoretical generalizations Danilevskii and Leont'ev [1;83].

A different point of view on this issue expressed the other Russian conservatives - Konstantin Petrovich Pobedonostsev (1827-1907). He believes that the basis of historical change of law - from the original simplicity of the progressive individualization - is inherent in the legal form of an idea. Pobedonostsev writes that “for legal form is characterized by not only the natural process of birth and possible extinction, but also a process of “spiritualization” of the right internal idea, which makes it possible to improve the legal form” [10;89]. That is, we can talk about that in the interpretation of Pobedonostsev historical changes in the law are not only used techniques organic approach, but also a metaphor of the teleological purpose.

Chief Procurator of the Holy Synod says a lot about the nature of power, sacrifice and the sacredness of true policy. Guarantee permanence of public Pobedonostsev seen in the correct understanding of its origins and began to root of national life. One such principle is a power that understood as a moral philosopher, bringing together people power. Its basis, according to Pobedonostsev has always been and will search for human truth that leads derived from the divine. In other words, the characteristic Pobedonostsev mystical understanding the religious vision of the nature of power. According to him, the power – “the great and terrible thing... because it is the case - the sacred” [11]. He writes that the “sanctity” is self-sacrifice, self-denial for the sake of service to God and, thus, the "power - not for himself there, but for God's sake, she “is a service to which the doomed man”. According to the interpretation of Pobedonostsev, ontological element appears in the right kind of ideal-dogmatic form, so logically permissible to take the historic rights movement, not only as a process of historical organicistic, but also as an ideal-changing interaction of dogmatic and empirical elements in the substantial rights of the content.

Certain difficulties arise in the assimilation of the third component of law Pobedonostsev - an empirical measure of law. In the most general form, we can agree with the position of Russian lawyer that “consideration of the empirical distinctiveness of public life in the law is the most important condition for effective implementation of the law” [6;182]. However, he argues that “laws should not be composed, and corresponding to the life [6;183]”. This position is internally inconsistent because it is, “Appreciating the very laws of the state, while at the same time, in fact, contrary to the real meaning and content of legislation as a matter of creative, intelligent, and as an activity, marked by the seal of social and intellectual inventiveness” [4;176].

Therefore, we see it strictly conservative attitude to politics, where Pobedonostsev says that the monarchy - is a huge personal responsibility before God, the monarch. This is not a “thrill” of his position, and Sacrifice in the name of the Fatherland. “For it is also characterized by an emphasis on the inadmissibility of a usurpation of the supreme authority of the so-called authorities managing (attributed to their category, and an independent judiciary), and the recognition of the monarch morally responsible for the activities managing authorities” [10;159]. Metaphysical possibility of the supreme power, satisfying the aspirations of the ethical ideal of human nature, exists only in a system of objective idealism, one form of which is the Christian worldview.

First, the postulation of an ontological principle leads to higher possibility of a power not only as the natural origin of sociality, but also as an ideal. Secondly, the presence of an ideal as an ethically proper, not only on the ontological (objectively), but also anthropological (subjective) level leads to the possibility of the existence of power as a universal ideal. Accordingly, in the representation of K. Pobedonostsev, the metaphysical possibility of the supreme power, that is, power as a universal ideal, based on two postulates of the Christian worldview: 1) the assumption of the existence of higher ontological nature as a source of moral norms, 2) on the assumption person’s origin of the God, which makes the possibility of knowing the content of this rule as one of the metaphysical qualities of human nature. Submission to the highest ethical top government reported a fair, consistent with the divine commandment, and the personal conscience of each, the rule in society. Perhaps it is worth noting here the view of the principle of Pobedonostsev separation of powers: “he was opposed in principle to an equilibrium isolation and autonomy of the three authorities, but recognized the need for separation of power from the power of judicial administration. K.P.Pobedonostsev, reflecting on the state, wrote that it “has a large family in which only the humility, sacrifice, renunciation of his own”. I “capable of creating social order and harmony”. The power of the autocratic state drawn to them at the same time as the resultant of all the class, group and private interests of power” [10;220]. Pobedonostsev’s ontological approach closely associated with his views on the political regime. “The cause of the destruction of society – democracy”, - he writes. He believes that the root of all social ills lies in the exaggerated attention that people pay for “the establishment or the beginning of the abstract, mostly false, or falsely applied to life and reality” [5;83]. Protesting against the excessive rationalism in politics, the author of “Moscow Collection” emphasized that “the theory of passion has always led and will lead to a tragic break with the politics of real life, the destruction of public order and the weakening of the discipline of thoughts, feelings and morals” [8;108]. Thus, Pobedonostsev defended one of the main theses of the conservative ideology of non-mechanistic view of organic life, to which the application of any provision of science and philosophy “has the meaning of probable assumptions, hypotheses to be any time to check common sense” [7;59]. The gap theory and practice, “general principles” and the real basics of life are, according to Pobedonostsev, “the most vicious and dangerous trend of social development, the primary” disease of our time.

“The best example of this flow of disease” - the idea of democracy. Resulting from this theory is the idea of parliamentarism was considered as Pobedonostsev, the center from which diverged more private circles of innovative principles and concepts that require drastic changes taking shape over the centuries the various elements of the political system. For this reason, critics of this “lie”, the ideas of constitutionalism and parliamentarianism Pobedonostsev mind occupied during the entire period of his prosecutor chief. It is no accident that the “October 19, 1905 - after the Manifesto of October 17, 1905 - he resigned and retired as the chief prosecutor, leaving the title of a member of the Council of State” [3;93]. But by attention Pobedonostsev were certainly positive aspects of representative government. The most important feature of the parliamentary system - its ability to “secure the evolutionary way of development of society” [2;26].

Thus, it seems reasonable interest in the work of K. Pobedonostsev, political and legal views which were made in the course of its practical state activity that gives them special value. This article presents a few political and legal views of a statesman, namely, the ontological understanding of law, including the mystical-religious views Pobedonostsev without affecting its relationship to other social spheres of society.

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