Normativity and facticity: foundation of legal validity from the communicative perspective

Journal of Siberian Federal University. Series: Humanities & Social Sciences. 2022. Vol. 15. No. 12. P. 1751–1762.

Samokhina E., Osvetimskaya I.

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.

Keywords: normativity, facticity, legal validity, Theory of Legal Communication, principle of mutual recognition, individual sovereignty