ON ANTHROPOLOGICAL FUNDAMENTALS OF GENERAL LAW THEORY // Вестник БГУ. Юриспруденция. - 2023. №1. . - С. 10-18.

ON ANTHROPOLOGICAL FUNDAMENTALS OF GENERAL LAW THEORY

DOI: 10.18101/2658-4409-2023-1-10-18 UDK: 34.01

The article critically reviews the anthropological fundamentals for the general law theory. It is argued that the rejection of dialectical materialism and the transition to the ideas of legal pluralism, which are based on the ideas of structuralism and functionalism developed by the American or English school of anthropology, have led to a substantial weakening of the theoretical knowledge, first of all, such questions as of the origin of law. The refusal of modern jurisprudence for searching genetic patterns underlying the historical process, as well as in matters of social evolution and continuity, not only dilute the national idea, identification and understanding the legal ways uniqueness, but also do not contribute to the process of developing a common legal understanding and universal definition of law. The relevance of this theoretical problem is determined, among other things, by the complexity of modern international relations. The ideas of structuralism and functionalism have been repeatedly criticized by anthropologists, ethnologists, and representatives of other social disciplines. As for the anthropology of law, we believe that the three most significant gaps in the views of Br. Malinowski on the nature of culture have been found. Firstly, the lack of a definition for the concept of custom allows Malinowski to operate with a well-known term in unacceptably wide ranges. Secondly, the concept of a social institution and its differentiation from related concepts, including those used in the field of law, is not explained. Thirdly, there is no differentiation of social norms, as a result of which the analysis of a number of legal phenomena, such as family, property, power, community, and etc., seems banal and lies outside scientific criticism. The above indicates the relevance of the development of questions within the origin of law on the methodological foundations of the general law theory. Attention is drawn to the gaps in knowledge about the essence of the clan system, since the origin of law and the state are in dialectical relationship with the processes of the clan system disintegration.

general law theory, anthropology of law, anthropology, social anthropology, cultural anthropology, sociology, structuralism, functionalism, legal pluralism.