THE ESSENCE OF RIGHT AND THE LAW IN LEGAL VISIONS JOSÉ ORTEGA Y GASSET

Abstract

The Ortegian concepts of the essence of right and law are revealed on the example of pre-imperial Roman law. It should be stated that Ortega did not develop a systematic philosophy of law and did not initiate a new sociology of law. According to the Iberian, legal is the result of the people’s spontaneous search for new opportunities for coexistence. Thanks to the convictions of public opinion, it received its separation from custom and became an imperative possibility of the individual. Law acquired the following features: a) increases the level of survival and increases the horizons of social opportunities of the individual; b) has undeniable, irrational and alienated force; c) has bilateral cooperation; d) is a general form of utility. The right is also imbued with the principle of use, according to which any person can use the opportunity of other members of the community to «borrow» public property. Ortega classifies the principle of use into strong and weak levels of intensity. Legal norms are based on the experience of the community, its goal is to spread the level of survivability. Therefore, the principles of justice and morality play a secondary role in legal. The law is the fruit of corporate creativity, the result of a compromise between legal possibilities and a dangerous situation where a person cannot rely on moral and legal norms. The law is a product of the spontaneous contractual activity of the nobility, a certain corporate agreement, which becomes an imperative norm of the community in a clearly defined action. In the process of its formation, the law emerges from the possibilities of the law, and at the same time it denies the abstract nature of the law by its situation. According to Ortega, the most effective legal system in human history was Roman law. It did not have a statutory form, was not sanctioned by the state. The latter used law and law to strengthen its power, functions and institutions. Originally, Roman statesmen only promulgated laws and supplemented its gaps. The law built a new great, imperative reality and had an anti-human, impersonal and at the same time anti-authoritarian essence and approved in Rome the republican principle of law-making.