philosophy of law

Conceptual foundations of the Western communicative theory of law: Nicholas Luhmann

Introduction. The article deals with the theory of law by Nicholas Luhmann as one of the most important conceptual and methodological sources of Western communicative theories of law developed in the context of post-metaphysical thinking in social theory. Theoretical analysis. In the social system of Luhmann, communication communicates, so the concept of Luhmann belongs to the number of non-subjective ones. The legal system in this concept is formed by the diff erentiation of communications, thanks to which a legal co de arises. On its basis, specifi c communications are redefi ned, being included in the legal system. The function of the legal subsystem is to stabilize other subsystems by normalizing the expectations of counterparties and “monitoring” all subsystems. Empirical analysis. Luhmann shows that the justifi cation of law within law is impossible due to the paradox of self-application – law cannot determine whether it is itself a law. The logical paradoxicity of law does not cancel its functionality, since the basis of law is transcendent and is brought into the political system. Results.The Luhmann model of autopoiesis is not correlated with usnaturalism, since it is focused on the processes of social self-organization. It refl ects the classical explanatory schemes traditional for legal positivism, since positivization is ultimately subordinated to the transcendent political basis of law.

Philosophy of Law in the Context of Post-non-classical Science: Methodological Pluralism and the Case of Communicative Theory of Law

Introduction. The article deals with the role of methodological pluralism in the development of the communicative theory of law. The specificity of modern post-non-classical rationality determines the growth of interdisciplinary research, making new demands on the philosophy of law. In this connection, there is a question of the implementation of the principle of methodological pluralism in the communicative legal understanding. Theoretical analysis. The author examines the deductive monometological character of classical types of legal understanding, shows the barriers that block methodological pluralism. The communicative theory of law is interpreted as a post-non-classical scientific theory based on an open polylogue with various social theories and focused on the search for an integrative legal understanding. Empirical analysis. The author shows the work of the principle of methodological pluralism in the theory of communication as a key source of the communicative theory of law. The researcher analyzes the strategy of detailing the basic categorical series of communication theory by its disciplinary areas, including the communicative theory of law. Results. The author has established the methods of theoretical communication of interdisciplinary fields in the communicative theory of law, the prospects for applying the principle of methodological pluralism in the communicative theory of law, its heuristic potential for answering questions about who creates law, what tools ones uses and what consequences for the social system it leads to.