Analysis of the different theories of legal relationships

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Chapter 2 in Theories of Legal Relations, 2023, pp 46-148 from Edward Elgar Publishing

Abstract: It seems possible to distinguish four typical approaches of legal relationships. The empiricist view of legal relationships sees them as pre-existing social relationships regulated by law that can be experienced. The subjectivist and idealist current, which started with Kant (although there are antecedents), Fichte and Savigny, among the jurists, considers legal relationships as encounters between two rational, voluntary, and free subjects. The objectivist current considers that objective law, in the sense of a set of norms of a given legal order, constitutes the legal relationships and sometimes even replaces them with other concepts such as institutions, legal situations or a typology of norms. Within this current, normativists analyse legal relations as relationships of norms. The fourth current is analytical in that it considers that legal relationships are made up of language games in the broad sense (verbal, gestural, and symbolic). Human relationships do not pre-exist legal relationships but arise with them. This approach seems to give a better account than the others on the notion of legal relationships today. It avoids confusing legal relationships with other related concepts, as other currents do, such as legal facts, debts, obligations, subjective rights, institutions, legal persons, prerogatives, or norms. At the end of this process, the concept of legal relationships is emancipated and autonomous.

Keywords: Law - Academic (search for similar items in EconPapers)
Date: 2023
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