Kann es eine Letztbegründung des Rechts geben?
Die Systemtheoretische Begründung des Rechts
In the era of natural law, the foundation of the law was grounded upon something beyond the law itself, i.e., external factors such as a higher authority, nature, or even the reason and ontological essence of man. According to this reasoning, man has in effect been clandestinely elevated to an equal plain with God and operates in the external realm, essentially observing the world ,,from outside“. Thus, any attempt to provide a basis for legal decisions by such external factors depends on an ,,observer,, who assumes a privileged position with respect to the law and its ground. Lawyers continue to maintain this position of interpreting the positive law by seeking the ground of the law outside of itself, i.e., the external factors such as the ,,source of laws“, the ,,intention of the author“, and the “fundamental norm“, for example. While simultaneously claiming to be under the rule of law, they paradoxically take the position of an external ,,observer“ who perceives the law “from outside”. This position leads us to aporia, or an insoluble contradiction, regarding external grounds. This paper proposes a means by which to emerge from the above aporia. Using the theory of social systems as its basis, the legal system is viewed as a closed system and ,,the ground of the law“ is by no means derived from external factors; rather, it can be stated only through an internal operation within the closed system itself.
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Document Type: Research Article
Publication date: July 1, 2005
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- Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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