The Incorporation Problem in Legal Philosophy: A Contribution to the Discussions on the Relation between Law and Other Social Subsystems

Jurisprudence 2/2020 Section: Articles Page: 18–25

Keywords: autonomy of law, unity and fragmentation of law, systems theory of law, incorporation thesis, transformation of non-legal concepts and conceptions in law

Abstract: The complexity of the social order in modern states and the increasing amount of legal regulation enable to perceive more and more problems simultaneously from different perspectives. In this article, I will try to build on the debate on the incorporation of morality into law and extend it to the current topic of the application of concepts and conceptions from other social subsystems into law. The aim of the article is to try to argue that a similar situation as in the case of law and morality occurs in the case of interaction of law and other social subsystems. This fact subsequently leads to the need to describe the traditional incorporation problem from a different perspective. I will try to argue that if the autonomy of law is to be maintained, the incorporation problem needs to be described from a different perspective. I summarize this different viewpoint into the thesis of transformation, not the incorporation of non-legal concepts and conceptions into law.

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