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Regular version of the site

Book chapter

Либертарно-институциональная концепция права

С. 194-227.

This research is an elaboration in the field of theoretical social institutions. The subject of research is jural principle of sociality (social culture) and the institutions created in accordance with the jural principle.

The goal of the project is to develop an institutional libertarian-juridical theory, which would allow for distinguishing between institutions (as well as laws, legal rules, cultures and civilizations) of the jural type (jus = Recht, droit, derecho, diritto etc.) or potestarian type (potestas = power, might), including statehood, i.e. the institutions aimed at the formation and exercise of public authority.

The research methodology draws upon libertarian socio-anthropological paradigm: it means that the jural principle of social culture consists in presuming that every person belongs solely to himself (self-ownership, the principle of personal autonomy), which implies a prohibition against aggressive violence. The libertarian concept of human rights can also be derived from this paradigm: everyone has the rights only on themselves and on their own. Furthermore, this paradigm means that social cultures may follow either the jural or the potestarian principle, hence the differentiation between jural and potestarian types of culture. This distinction enables juridical libertarianism as a research program to overcome the limits of the normative theory of law, as well as normative theory of Rechtsstaat, and to study instead jural institutions directly within the environment of social cultures and their interconnections with potestarian institutions.

The research is grounded in modern institutionalism, as opposed to traditional legist formalism which confined itself to official legal texts. The institutional approach reveals the real social rules (or systems of rules, institutions) and allows for a grounded perspective on the relationship between jural and potestarian regulation, as well as the real functions of institutions of public authority, as opposed to declared ones.

The typology of social cultures set out in our research enables one to distinguish civilizational types dominated by the jural principle (e.g. Greco-Roman antiquity, capitalism) from those dominated by the potestarian principle, such as that of despotism and communism, and also to identify mixed civilizational types, in which the jural and the potestarian principles clash with one another (e.g. the Western and Eastern types of feudalism, the Western and Eastern types of social capitalism). It is worth noting that such mixed civilizations still preserve a archetypal cultural code – either jural or potestarian. This prevents profound changes within a particular civilization: such changes can occur sooner or later but only insofar as the civilization collapses. In its place a new civilization may emerge, which may belong to the opposite type. Consequently, as long as the Russian civilization was historically based on the potestarian principle, every change occurred only within the limits of this particular socio-cultural type, and it is incapable of transforming into a civilization of the jural type.