philosophy of law

Axel Honneth: The limits of legal freedom

Introduction. The approach to substantiating legal genesis through social theory suggested by J. Habermas was further developed in the works of A. Honnet, the representative of the later Frankfurt school. His proposed version of the theory of subjectivity led to a rethinking of the concept of freedom, in which the limits of legal freedom are defined in a new way. Theoretical analysis. The concept of recognition developed by Honnet expands the understanding of intersubjective interaction and its social and legal effects. The autonomy of the subject is revised towards recognition, which means that the degree of autonomous behavior depends on the social environment and the success of the individual’s intersubjective strategies in it. Socialization is a process in which a person learns to understand and recognize not only others, but also himself / herself, trusting them and relying on them. In a world where the concrete Self is devalued and rejected by others, the Self is deprived of the strength to assert itself and self-esteem. This model is diametrically opposed to the liberal doctrine based on the idea of an atomicisolated individual. Еmpirical analysis. The author considers the concept of freedom put forward by Honnet and establishes that legal freedom is only one of its elements, unable to independently ensure the realization of social freedom. Results. The concept of Honnet clearly fixes the place and role of legal freedom in ensuring social freedom. On the one hand, it contributes to strengthening the humanistic principles of modern legal understanding, turning it towards social solidarity. On the other hand, the statement of the force of law that is binding on intersubjective institutions opens up new research perspectives for the analysis of legal reality.

 Izv. Sarat. Univ. Economics. Management. Law, 2022, vol. 22, iss. 4
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.

 Izv. Sarat. Univ. Economics. Management. Law, 2022, vol. 22, iss. 1
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.

 Izv. Saratov Univ. (N. S.), Ser. Economics. Management. Law, 2020, vol. 20, iss. 3