Концептуальные основания западной коммуникативной теории права: Николас Луман

Abstract

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 differentiation of communications, thanks to which a legal co de arises. On its basis, specific communications are redefined, 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 justification 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 reflects the classical explanatory schemes traditional for legal positivism, since positivization is ultimately subordinated to the transcendent political basis of law.