تأملات في تأريخ النظم القانونية والاجتماعية الخارجة عن دائرة الدولة

Abstract

This research posits that studying the emergence of the state requires a historical pursuit of the dialectical relationship between legal and social systems. The core problem of the study lies in clarifying how the relative independence of law and its self-existence were achieved only after purging it of extraneous elements like religion and morals, thereby binding its existence and function directly to the social structure. Utilizing a historical, analytical, and comparative methodology, the study reviews four intellectual shifts: Greek thought, which equated law with natural justice; Medieval philosophy, which subordinated human natural law to the Divine will; the Positivist school, which confined law to official texts while ignoring social dimensions; and finally, the Socio-legal school (specifically the theories of Durkheim and Duguit), which treated law as a social phenomenon generated by society to ensure social solidarity and the division of labor. Furthermore, the study deconstructs traditional definitions of law that overemphasize "material sanctions imposed by the state," proving through historical evidence and legal branches (such as international and constitutional law) that the coexistence of law and the state is not inevitable. It demonstrates the existence of vital legal systems operating independently of the state, classifying them into two categories: legal rules existing above the state (such as divine sharia and international law) and legal rules existing below the state (such as tribal regulations, feudal estates, and trade unions). The study concludes that the legal system constitutes a structural level endowed with relative autonomy, yet it remains ultimately governed and shaped by the social relations of production and the sociological conditions prevailing in each historical era.