«Право ученых» как фактор становления социальной нормы верховенства права в Западной Европе
The rule of law is widely recognized as a universal value of modern civilization. However, this recognition may in fact be emasculated by a partial or inconsistent implementation. Hence, it is not only the formal recognition of the rule of law that matters, but also the emergence on its basis of a social norm of respect and compliance with legal prescriptions. How exactly is a sustainable rule of law formed? Such a formulation of the problem necessarily presupposes an appeal to historical experience to clarify the factors of the stability of the rule of law in some modern societies.
In this article, the author argues the role of the professional community of lawyers in the formation of the desired social norm. The research approach can be called the comparative social history of law, which means the study of law from the perspective of the functions that it performs in society, and in comparing the legal experience of different societies. The criterion for comparison is the ideal type of "learned law", that is, the idea of law as the rules of fair, correct behavior, based on the highest order and interpreted by a professional group of experts. The objects of comparison are the European ius commune and Muslim fiqh.
The first part of the article is devoted to explaining the model of the “learned law” as a typological device of comparison, the second explores to the emergence of the “learned law” in Western Europe in the 12th through 16th centuries and in the Middle East of the 7th through 10th centuries, the third studies the preservation of the “learned law” in Europe during the "long XIX century" and its disappearance in the Middle East. Based on the experience of the development of the “learned law” in Italy, France, Germany, the Ottoman Empire (Turkey), the author shows the general features of the “learned law” in the named countries, the similarity of the process of its creation and dissemination, as well as the difference in the strengthening or loss of its effectiveness in society.