![handle is hein.journals/recthori45 and id is 1 raw text is:
RECHTSTHEORIE 45 (2014), S. 1-18
Duncker & Humblot, 12165 Berlin
COMMUNICATIVE APPROACH AND LEGAL THEORY*
By Mikhail Antonov, Andrey Polyakov,
and Ilya Chestnov, Saint-Petersburg
I. Introduction
Communicative approach to law has its prehistory in the philosophy of
law, which is not surprising, since, according to a well-known philoso-
phical principle, ex nihilo nihil fit. This line of ideas displaying the basic
features and parameters of law has been planted in the writings of Aris-
totle and continued by the Stoics, medieval scholastics, Grotius and
other thinkers of the Modern Age. The basic idea of communication is to
consider another person as the one capable of understanding and inter-
acting. Moreover, such interaction (at institutional level) is considered as
a necessary condition for the existence of a human personality and law.
Accordingly, the communicative approach to law differs significantly
from both the naturalistic and theological approaches (when law is asso-
ciated with either Nature or God), and from the statist approach, when
the place of Nature or God is taken by the state, establishing the 'law'
by a stroke of the legislator's pen writing.
A more detailed description of the history of this row of ideas may be
found in Georges Gurvitch's The Idea of Social Law.1 Indeed, the no-
tion of communicative nature of the law as understood by the thinkers of
the past differs dramatically from its modern counterpart, which is espe-
cially so in respect of the methodological policies and conceptual appara-
* Ilia Chestnov prepared this Article's Chapter 1, while Mikhail Antonov and
Andrey Polyakov authored the Introduction, Chapter 2 and Conclusion thereof.
Authors would like to extend their gratitude to Professor Werner Krawietz and
other participants of the Russian-German Symposium Legal Communication in
Modern Legal System that was held on December 6th 2012 at the Law Faculty of
St. Petersburg State University, for priceless comments and suggestions during
discussion of the theses reflected in this article. This paper derives from the pre-
sentations made by the authors at the Symposium. The authors are grateful to An-
ton Petrov (LL.M. Pacific McGeorge School of Law) for his kind assistance in
translating the initial Russian texts into English.
1 Georges Gurvitch, L'id6e du droit social, Paris 1932; see also Andrey Polyakov,
The Communicative Conception of Law: the History of Genesis and its Theoretical
Foundation, Saint Petersburg 2002 [in Russian].](ViewImageLocal?handle=hein.journals/recthori45&div=1&collection=&method=preview&ext=.png&size=3)
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