• A
  • A
  • A
  • ABC
  • ABC
  • ABC
  • А
  • А
  • А
  • А
  • А
Regular version of the site

Article

Рецензия на книгу: Bjarne Melkevik, Philosophie du Droit. Quebec: Presses de l'université Laval, 2014, 592 pp.

The present paper is review of a book by Canadian legal scholar Bjarne Melkevik. This book is devoted to problems of philosophy of law. The author of the review analyses the general methodological premises of Melkevik’s book, its strong and weak points, accentuating readers’ attention on the connection between the legal ideas of the Canadian thinker and the philosophical conception of Jürgen Habermas. The book under review represents a thematically organized collection of the works that several years ago had been published as three monographs apart. In the centre of Melkevik’s attention stand issues of procedural legitimation of law, of legal communication and its role in construction of interactional cooperation between human beings. The Canadian author also scrutinises public discourse as a foundation for modern legal thinking. Melkevik insists that law cannot exist outside real practice of communication. This signifies that a command or an argument that is enforced on people through coercion or authority and that is not accepted through discursive legitimation, cannot be considered to be a legal command or a legal argument. The Quebecois legal scholar explicitly challenges the conventional idea that law is something heteronomous and compulsory for human beings, something which compels them to certain behaviour against their own will. This author proposes an apology of autonomous action of subjects who take decisions about their rights through discursive legitimation - such decisions will have legal character if they are based on public democratic deliberation and on open communication. The author of the present review considers that such negation of heteronomy in legal regulation can distort how law really functions in modern societies. Such negation can also result in excessive idealization of the communicative function of law, which consequently will conceal other functions that are performed by law. Moreover, focusing only on how decisions are taken in democratic autonomous discourse disregards other aspects of legal communication and can have a negative effect for protection of individual rights.