society via treaty loses his rights only partly (right for self-help, self-defense when something is threatening his natural rights), in favour of the other part: private property and freedom. Golbach defined the Treaty of the society as a bundle of conditions necessary for organizing and saving society. Denny Didreau thought of the Treaty of the society a bit differently. “People, – he wrote, – quickly understood that if they continued using their freedom, their power, their independence… then the situation of every single person would be even more miserable, than that if he lived separately; they realized that every person has to sacrifice a part of his natural independence and to submit to will, that would be the will of the whole society and would be, so to say, common center and a point of unification of all their wills and powers. That is the origin of rulers.”
There is no need to say about theoretical unsoundness of this concept of the school of natural law. Even in the 18 century some bourgeois philosophers found the antihistorical essence of these views. For example, Jum says that natural condition is a fiction of the philosophers. State emerges not as a result of a treaty but historically. Some also said that people could not invent a term “state”, not knowing the practice. The first Russian law professor Semen Jefimovitch Desnitskiy abruptly criticized “natural law” and mostly Pouffendorf. “The works of Pouffendorf – he said – was unnecessary, because writing of states of humankind that had never existed, is a very unworthy deed.”
Chapter II
It is important to show which natural conditions were the soil for such an illusion of natural state and treaty state origins, and to show the role and importance of this idea in the class struggle of that time.
Marx said that the individual who enters the society union via treaty, as seen by theorists of the school of natural law, is a result of descended feudal society forms and developed in the 16-century new productive powers. A great mistake of natural law theorists was that in their opinion individual has not developed historically, but set up by nature itself. Features common for bourgeoisie were proclaimed as common for mankind.
But treaty of the society was regarded by many adepts of natural law not as a historical fact but as a logic ground, hypothesis for explaining the difference between state and natural condition, i.e. between state and anarchy for explaining one or the other form of state, ex. monarchy (Gratius), democratic republic (Rousseau). It must be added that in those historical conditions the theory of the treaty of the society had progressive meaning for struggle with feudal theories, ex. theocratic concept of state origins and patrimonial theory, which viewed the state as property of the monarch.
A statement about the dualism of law is common for the treaty theory. It differentiates the natural This term has dual meaning. This is either inborn law, not dependable from state or the one that is common for different times or for different states at the same time. and positive law, i.e. given by the legislation of a state After having come to power and having created its own class structure, bourgeoisie rejected this separation of law into natural (ideal of law) and positive (the real practice). It admitted only positive law. And that’s why bourgeois scientists lose interest in natural law after that. In 19-century juridical positivism emerges and attracts wide spreading, only engaging positive law. . Natural law is prior to society and state; positive law – to creating a state.
This dualism in notions of law is also depraved feature in the theory of natural law, because the metaphysical way of thinking, common for bourgeois ideologists, was not able to explain the unsteadiness and variety in the law.
For the ideologists of bourgeoisie it is common to consider law and state as an expression of the people’s will. It is of course wrong, from or point of view. But in those historical conditions of struggle against feudalism and absolute monarchy, this illusion had certainly a progressive sense, because with the help of this idea bourgeoisie was achieving abolition of the system of privileges and setting up a representative system in state system.
Hugo Gratius is one of the earliest bourgeoisie ideologists and a representative of school of natural law. His views were formed at the time when the process of formation of bourgeois state in Netherlands had not finished yet, and the British one was only starting. It must be noted that the struggle of the Dutch against Spanish king Phillip II made a great influence on Gratius. The problems of international law, examined by him were set up by the bloody 30-years war, competition between Holland, England and Spain and their fighting for the leadership at the sea.
It must be noted that in the system of Gratius’s