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Legal Systems Integrity In Philosophy

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  • Mikhail Antonov

    ()
    (National Research University Higher School of Economics)

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    Abstract

    This paper aims to analyse the philosophical premises on which the idea of unity of law (identity of legal system) is based. In the history of legal philosophy this idea found its main arguments in the presumption of totality of legal regulation. Such totality translated the philosophical tenets of holism according to which law is not limited to the positive-law rules and institutes. Law refers to the supreme values priming over the legal instruments human beings and collectives create for regulation of their mutual behaviour. This argument implies that there are highest values (that of justice, good…) under which all the social relations can be subsumed and which finally give the binding force to positive law. The author argues that this line of thought is based on philosophical objectivism and naturalism, and can easily lead to primacy of the social over the individual. To substantiate the idea of systemacity of law, one can turn to the modern debates about logic of social cohesion and construct a legal system identity as a purely intellectual hypothesis necessary for thinking about law. This integrity can be described as a unity of discourse, or as a unity of societal practices. This reconstruction of integrity of law can be extended by appealing to the basic ideas of normative philosophy of law (from Hart and Kelsen to Raz and Dworkin) and is reconcilable with the conception of normative systems of Bulygin–Alchourron.

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    Bibliographic Info

    Paper provided by National Research University Higher School of Economics in its series HSE Working papers with number WP BRP 34/LAW/2014.

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    Length: 21 pages
    Date of creation: 2014
    Date of revision:
    Publication status: Published in WP BRP Series: Law / LAW, April 2014, pages 1-21
    Handle: RePEc:hig:wpaper:34/law/2014

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    Keywords: normativity; social control; legal system; positivity of law; unity of law; identity of legal system;

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