The term “New Age” was introduced by Italian humanists in the 16th century to refer to a special period in world history that replaced feudalism. The New Age characterizes the beginning of modern history of state and law. In Western Europe it covers the period from the seventeenth century to the beginning of the twentieth century. – From English bourgeois revolution (1640) to the First World War (1914-1918). In Eastern countries the history of modern state and law begins much later. In Japan, for example, it began with the Meiji Revolution (1867), and in China with the Xinhai Revolution of 1911. However, it was the meeting of the West with the rest of the world and the assertion of its hegemony that became the central phenomenon of New History.
Main Trends and Stages in the Development of the National State and Law in Modern Times
The main content of this stage of human evolution is the worldwide expansion of liberal-industrial civilization, which destroyed the subsistence economy, the traditional way of life of class society and feudal absolutism. In their place, industrial civilization has brought:
- A market economy based on freedom of enterprise, private property, and competition;
- civil society as a community of free and equal citizens;
- liberal democracy with the idea of supreme rule of the people, parliamentary system and inalienability of natural human and civil rights;
- nation-state as a political organization of power, expressing not the class, caste, but the national interests of all citizens living on its territory and identifying themselves with it through the institution of citizenship
- A national legal system based on the conventional nature of legal norms, as opposed to tradition, which operate throughout the country and are universal and equal scales of freedom and justice for all citizens.
The market economy, which marked the beginning of industrial civilization, fundamentally changed the principles of organization of state power and administration, as well as the mechanism of legal regulation, creating the conditions for the formation of economic and political democracy. Based on the principles of private property and freedom of enterprise, the market economy has been more effective in the use of such qualities of human nature as personal gain, the desire to get rich, competition, organically related to the constant improvement of the tools of labor. On the basis of the technological superiority associated initially with the creation of manufactory, i.e. production with the division of manual labor, and then the introduction of a system of machines – factories, industrial civilization proved its advantage in the struggle with the traditional agrarian system of the East and with the medieval way of life that remained in the West, and defeated them. Thanks to the Great Geographical Discoveries all the peoples of the globe were included in the unified process of world development.
The development of private property, competition and competitiveness in all spheres of life radically transformed the social order and the social organization of society. The principle of class hierarchy, characteristic of traditional society, was abolished, and the principle of formal equality of citizens before the law and courts was proclaimed. There was a transition from the personally dependent relationship of suzerainty-vassalage to individual freedom, which is the basis of civil society – a set of free and equal citizens who realize their daily needs outside and without state interference. Civil society and the market economy formed a new model of social stratification based on economic inequality while declaring the principle of equality. The economic power of the first two estates – the feudal landowners and the clergy – was declining, but they had political and spiritual power. On the contrary, the new rich (industrialists, merchants) from the common people, called the bourgeoisie (the third estate), were rapidly getting richer and demanded greater rights and participation in the government of the state. The resistance of the feudal nobility to the growing political power of the third estate was broken as a result of the bourgeois revolutions of the 17th and 18th centuries. They resulted in the overthrow of kings and emperors and the transformation of the bourgeoisie into a politically ruling class that now determined state policy.
The political system of industrial society is based on the principle of popular sovereignty, the right of citizens to elect their representatives, the separation of powers into legislative (parliament), executive (government) and judicial, independent of each other. Absolutist monarchies, emperors’ personal omnipotence give way to a state governed by the rule of law. The rule of law is associated with the constitutional recognition of the supremacy of human and civil rights and freedoms as the highest value and the obligation of the state and its bodies to guarantee the protection of natural human rights by acting strictly within the framework of the law. Binding by law is equally binding on the state and the individual. The new classes of industrial society – the industrial proletariat and the bourgeoisie – to protect and express their interests can create political parties, which, if they win general elections and come to power, have the right to formulate the political course of the government. Public and professional organizations and social movements also become active subjects of political life, influencing the process of making political decisions and normative acts.
Upon coming to power, the European bourgeoisie replaced Catholicism with an entirely different ideology – liberalism, which radically changed the idea of man’s place in the world, the purpose of the state and law. Its foundations are rooted in the ideals of the Renaissance, which asserted the self worth and individuality of man, who deserves respect and veneration by virtue of his active and creative origin. In keeping with the philosophy of humanism, as well as the God-given nature of existing crafts (Protestantism), liberal notions of the state as a social contract concluded to ensure the inalienable natural rights and freedoms of citizens, and the right as a universal and equal scale of freedom for every individual were formed. Relying on the theory of natural law, the ideologues of the emerging bourgeoisie argued that every person is endowed by birth with fundamental and inalienable rights: the right to life, liberty, property, and dignity, which no one can alienate. Human rights, based on formal equality, became the main value guideline of social development, which greatly influenced the nature of the state, limiting its omnipotence and facilitating the establishment of democratic interaction between the state and the individual. The formation of the rule of law during the New Age would have been impossible without the assertion of human rights in the public consciousness and political practice.
The ideology of liberalism as the ideological banner of the nascent bourgeoisie defended freedom of enterprise, parliamentary system, universal suffrage and the human right to free expression of his thoughts. The idea of human rights and freedoms seems central to liberalism. Every person has a claim to a certain amount of material and spiritual goods, to which the state and society must contribute. The volume of these benefits has historically been determined by the position of the individual in the social structure of society in the system of material production, in the hierarchy of power. These benefits, which are granted to the individual, can be called human rights. The guarantee of these rights is possible under the conditions of legal statehood, which is based on the idea of limited government and the priority of the values of individual freedom. During the New Age there was a transition from the class law, where the scope of rights and freedoms depended on the class affiliation of an individual, to the formal, bourgeois law, which proclaimed the legal equality of citizens, and the formation of national legal systems. Bourgeois law was formed as an integral system, which would exclude the legal particularism and diversity of legal orders characteristic of feudalism.
The formation of the national market, the assertion of the principles of private property and freedom of entrepreneurship on a national scale required the creation of a unified system of law. It was possible on principles different from those of feudal society: 1) the rule of law (or law): 2) legal equality; 3) the principle of freedom; 4) the principle of legality. The main value of civil society is the free individual, who has a claim to a certain amount of material and spiritual goods, called rights and freedoms. Bourgeois society proclaims freedom as the basis of social and political order. Freedom is interpreted quite broadly as freedom of economic, social, and political choice. It means the freedom of private property, enterprise, contract, the freedom to vote and be elected to public office, the freedom to organize, join and resign from organizations, and so on. These rights are granted to all legally capable persons irrespective of their class and class affiliation, as well as sex, nationality, and religion. This expresses the principle of formal equality. Closely related to the principle of legal equality is the principle of legality. Legal equality means not only equal rights, but also equal duties for all, and equal responsibility before the law. Lawful behavior of all citizens and legal entities is one of the manifestations of legality. Legitimacy as a principle of universal behavior provides stabilization of political and economic relations, so necessary for the progressive development of society. The core of the national legal system of modern times, its dominant feature is constitutional (state) law, which regulates the fundamental relationship of the individual, power and society, defines the organization, organization and procedure of activities of state authorities in the center and locally, their relationship with citizens, as well as enshrining the fundamental subjective rights and freedoms of the individual.
Principles of bourgeois type of law within the borders of particular states, depending on the level of economic development, cultural and legal traditions acquired specific form of national legal system. Similar features of national legal systems of different countries allow to combine them into legal families: 1) Euro-continental (Romano-Germanic) and 2) Anglo-American (Anglo-Saxon or common law system). The differences between them are related to: a) the specifics of the process of law formation, in particular, either on the basis of reception of the Roman law, or on the basis of the judge’s decision; b) to the different forms of existence of the law itself, where in one case the law served as the main source, and in another – of judicial precedent; c) to the differences in the structure of law: the presence and absence of division into branches of law.
The Eurocontinental (Romano-Germanic) legal family was adopted by the countries of continental Europe, where the legal system developed on the basis of reception of the Roman law. In the 19th century these legal systems were influenced by French law, and in the 20th century their development was influenced by German law. The main source of law is the law, which establishes general rules of conduct and legal principles. The court in these countries is not engaged in standard-setting activities, but only applies the legal norms to specific cases. Furthermore, among the features of continental legal systems is the widespread codification of both substantive and procedural law
Euro-continental legal systems are characterized by the division of law into private law and public law. According to the prevailing view in these countries, private law protects the interests of individuals against criminal infringements, both on the part of individuals and on the part of the state. Private law includes such branches as civil law, family law, and commercial law. Unlike private law, public law determines the order of organization and activity of the bodies of power and administration and protects the interests of society and the state from any encroachments. The concept of public law includes a set of branches: constitutional, administrative, international, criminal, procedural law. Continental legal systems clearly distinguish between substantive law (a set of norms that directly regulate a particular type of social relations: managerial, property, etc.) and procedural law (a set of norms that define the interaction between the subjects of law, for example, an investigator and a lawyer).
The Anglo-American legal family has not adopted Roman law. It is based on the common law of England, which was created by the royal courts in the eleventh and twelfth centuries. The main source of law in these countries is judicial precedent (i.e. a decision of the highest courts of England, such as the High Court or the Court of Appeal), which is considered binding on all courts when considering similar cases. The court creates law, but it creates not general but casuistic rules, i.e., in other words, rules for resolving a particular case. In this regard, in Anglo-Saxon countries the concepts of law and law are not the same. Parliamentary law – a statute becomes the law of the country only if it is applied and interpreted by the court. Custom and constitutional agreements play a significant role as sources of law in these countries. The latter are very widely used in the exercise of state power, determining the relationship between the monarch, parliament and the government. Anglo-American legal systems do not divide law into private and public. There is no strict distinction between substantive and procedural law. In Anglo-Saxon countries the branches of law known in continental Europe are not structurally distinguished. Anglo-American law does not know codification, it is characterized by a special terminology, the presence of legal institutions, which are not found in the Euro-continental legal family.
In the development of the state and law of Europe and the United States in modern times usually distinguish three periods:
1) the initial period – the formation of nation-states and national legal systems (mid-seventeenth century – last third of the eighteenth century);
2) the period of strengthening of the bourgeois state and law as a result of the victory of capitalism and creation of colonial empires, but as a result of the industrial revolution the social antagonisms between proletariat and bourgeoisie worsen; this is the period of mass popular uprisings and bourgeois revolutions in Europe (mid 17th century – 90s of the 18th century – 70s of the 19th century)
3) the period of the crisis of bourgeois state and law and the search for a way out of it through the redistribution of resources in World War I, the emergence of alternative forms of state and law – socialist state and law in Soviet Union.