Analytical Jurisprudence and the Concept of Commercial Law

J. Linarelli
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引用次数: 5

Abstract

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain.
分析法学与商法概念
跨国商业律师知道全球化已经改变了商业法。认为商法仅仅是国家的法律,是对管理商业交易的规范的理解不足。有些人主张商法的跨国概念,但他们的辩护理由缺乏说服力,往往以国家法律制度之间的共同内容为基础。法律实证主义是关于法律制度概念和法律制度中规则生效条件的丰富文献,但尚未被用来理解国家之外或超越国家的法律秩序。本文旨在运用法律实证主义对跨国商事法律秩序进行概念化。盛行的实证主义理论至少含蓄地将法律秩序建立在国家主权的基础上。本文提出了一个世界性的法律实证主义概念,在这个概念中,国家不再是法律的实施条件。世界主义概念为充分描述跨国商业法律秩序提供了手段。本文提供的概念分析有其局限性,其中之一是它并不旨在评价跨国法律秩序的正义或道德。但是,本文所阐述的法律实证主义的世界主义概念作为理解除商法之外的许多跨国法律秩序的一种方式,是独立存在的。这种解释的吸引力在于,它将法律描述为一种人类社会实践,即使它不仅仅是国家的产物,因此我们不必依靠自然法理论来理解国家不遵守的法律规则。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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