Journal of Siberian Federal University. Humanities & Social Sciences / Normativity and Facticity: Foundation of Legal Validity from the Communicative Perspective

Full text (.pdf)
Issue
Journal of Siberian Federal University. Humanities & Social Sciences. 2022 15 (12)
Authors
Samokhina, Ekaterina G.; Osvetimskaya, Iya I.
Contact information
Samokhina, Ekaterina G.: National Research University Higher School of Economics St. Petersburg, Russian Federation; ; Osvetimskaya, Iya I.: National Research University Higher School of Economics St. Petersburg, Russian Federation; Saint-Petersburg State University St. Petersburg, Russian Federation;
Keywords
normativity; facticity; legal validity; theory of legal communication; principle of mutual recognition; individual sovereignty
Abstract

The papershows the way in which normativity and facticity are connected inside the principle of recognition based on the theory of legal communication. The hypothesis is put forward that the basis of the validity of law from the point of view of the communicative approach is the principle of mutual recognition of the sovereignty of the individual, due to which there is a convergence of normativity and facticity through the establishment in normative claims of the importance of the interdependence between language and the social world, prompting subjects to dialogue aimed at interaction. We argue, that within the framework of theory of legal communication, not only the gap between normativity and factuality is bridged, but also between the fundamental ideas of Natural Law, positivism and sociological jurisprudence. The principle of recognition of the individual sovereignty finds confirmation in positive law, serves to legitimize it in the minds of actors and is implemented in legal relations. In contrast to the self-referential concept of law, where the emergence of law is outlined as the derivation of a legal norm from higher norms up to a certain initial or basic norm, we defend that from the point of view of a communicative perspective, the basis of the legal validity is rooted in the individual, in individual’s communicative nature, which presupposes mutual recognition of individual autonomy in realization of their rights and legal obligations

Pages
1751–1762
DOI
10.17516/1997-1370-0949
Paper at repository of SibFU
https://elib.sfu-kras.ru/handle/2311/149628

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