[HOME] [BOOKS]
[ORDERING] [JOURNALS]
[ABSTRACTS] [LINKS]
[SPECIAL OFFERS]
Deborah Charles Publications
173 Mather Avenue, Liverpool L18 6JZ, U.K.
Phone/Answerphone: 44 (0)151-724 2500
FAX: 44 (0)151-729 0371
e-mail: dcp@legaltheory.demon.co.uk
LEGAL SEMIOTICS MONOGRAPHS, Vol. X
Semiotics and Legislation. Jurisprudential, Institutional
and Sociological Perspectives
CONSOLIDATED ABSTRACTS
Bernard S. Jackson, "Legislation in the Semiotics
of Law", in Hanneke van Schooten, ed., Semiotics
and Legislation. Jurisprudential, Institutional and Sociological Perspectives,
5-26: This paper seeks to develop further the claim that the legal system
comprises a series of interacting "semiotic groups". In the broadest
of terms, the definition of a semiotic group is a group which makes sense
(here, of law) in ways sufficiently distinct from other such groups as to
make its meanings less than transparent to members of other groups without
training or initiation. All aspects of sense construction may, in principle,
contribute to the judgment that a particular group is distinct. Many studies
of the language of law have focused upon lexicon (vocabulary) and syntactic
structures as characterising legal language, and as creating a barrier between
lawyers on the one hand and the public on the other. In this paper, I suggest
that a focus on the pragmatics of legislation is equally important; indeed,
it may well be at this level that differences between distinct semiotic
groups operating within the law are more readily analysed. The problem of
the semiotics of legislation is thus not to be conceived as restricted to
the problem of the transmission of the content of legislation. It also includes
messages regarding the force, status and "quality" of the legislation.
But such notions as force, status and "quality" are not inherent
in the text (semantics) of the legislation; rather, they derive from different
aspects of the use of the legislation (its pragmatics). In thinking about
the problems of transmission of legislation, we neglect changes in the pragmatic
context at our peril. The paper considers, inter alia, the relationship
between the semantics and pragmatics of legislation in "simple"
societies; the differences in modalities (including aesthetics) applied
to legislation in different discourses; differences in the constructiom
of its binding force; and differences in the construction of its authenticity.
On this last point, a more detailed account of the position in the U.K.
may be found in my recent article: "Who Enacts Statutes?", Statute
Law Review18/3 (1997), 177-207. e-mail: Bernard.Jackson@man.ac.uk
Willem J. Witteveen, Tilburg University, The Netherlands,
""Significant, Symbolic, and Symphonic Laws", in Hanneke
van Schooten, ed., Semiotics and Legislation.
Jurisprudential, Institutional and Sociological Perspectives, 27-70:
The creation of statutes is an act which produces meaning. There are large
variations in the extent and quality of the significance of legislation.
What pictures of communication through legislation are prevalent in a legal
culture? This paper articulates two simple semiotic models that are derived
from widely held notions in this regard. It also enquires into the normative
consequences of an understanding of the nature of communication through
laws. In part A of this paper, a message model will be developed for determining
the significance of statutes. Part B then postulates an alternative model,
relating to the symbolic dimension of laws, and proposing a textual model
of communication. Both are essentially simple models that are clearly unable
to capture all actual processes of communication through legislation. In
order to highlight the potential for constructive cooperation between officials
and citizens in designing laws that communicate better, in part C of the
paper a third mode of understanding legislation and communication is tentatively
suggested. This is based on the metaphor of law as a symphonic performance.
The semiotics of legislation - exercised through the two communication models
and the additional metaphor of symphonic activity - makes it possible to
rethink the art of institutional design, as proposed in the later writings
of Lon Fuller (part D).
John Bell, "Statutes, Legal Texts and Operational
Enactments", in Hanneke van Schooten, ed., Semiotics
and Legislation. Jurisprudential, Institutional and Sociological Perspectives,
71-79: A statute should be viewed not as a text, but as an operative
enactment, a normative standard. This standard is derived from reading the
text both in the light of other texts and of legal values and presumptions.
The statute forms part of the legal tradition and is interpreted accordingly.
Jackson's idea that meaning is related to the audience rightly emphasises
that the idea of a 'message' in relation to a statute is problematic. This
is particularly obvious if one examines the way statutes have to be interpreted
over time. Each generation reading the text interprets it according to its
contemporary relevance to the legal order. Witteveen's 'symbolic' focus
is also weakened as a statute is viewed over time. His analogy with music
is more powerful in that the statutory text, like the score, is read in
the light of reasonable expectations of the law at the time of interpretation.
The operative element is to the contemporary significance of the text. e-mail:
law6jsb@lucs-01.novell.leeds.ac.uk
John Griffiths, "Legal Knowledge and the Social Working
of Law: the Case of Euthanasia", in Hanneke van
Schooten, ed., Semiotics and Legislation.
Jurisprudential, Institutional and Sociological Perspectives, 81-108:
The theory of the 'social working of law' concentrates on the specific circumstances
of the actor whose behavior is the subject of legal regulation: the 'shop
floor' of social behavior. Among these are the actor's legal knowledge.
So far, the problem of legal knowledge has been approached as one of defects
in the system of transmission of legal information. However, both semiotic
theory and empirical research (concerning the regulation of medical behavior
that shortens life) indicate that the 'shop floor' may sometimes constitute
a semiotic group for whom the meanings of key legal concepts such as causation
and intention systematically differ from the meanings contemplated by the
legislator. e-mail: J.Griffiths@rechten.rug.nl
Bert C.G.J. van Roermund, "Legislative voices.
A Rousseauist Note on Legal Pluralism", in Hanneke van Schooten, ed.,
Semiotics and Legislation. Jurisprudential,
Institutional and Sociological Perspectives, 109-121: How many voices
are to be heard when the democratic legislator speaks? Some will say: one.
Others will say: countless. This paper argues: two. From a philosophical
point of view, the thesis that the legislator speaks with two voices is
the only feasible account of legislation, as well as of what is sometimes
called legal pluralism. First, I briefly sketch the semiotic problem of
'voices' in legislation; how it relates to the issue of 'legal pluralism',
and to both the lawyer's and the sociologist's answers to my initial question.
Then I will turn to Rousseau who, in his Social Contract (1762), confronts
us with the picture of two legislators - the sovereign and the genius -entertaining
a most curious relationship in order to bring about a well-established state
under the rule of law. I will try to show that his doctrine of popular sovereignty
implies a new account of government; an account that entails, on the basis
of a semiotic analysis of reflexive self-reference, the two-pitched legislative
voice which I think can solve the conceptual problem bound up with 'legal
pluralism'. e-mail: G.C.G.J.vanRoermund@kub.nl
Dennis Kurzon, "A Speech Act Approach to 'Dead Letter'
Legislation", in Hanneke van Schooten, ed., Semiotics
and Legislation. Jurisprudential, Institutional and Sociological Perspectives,
123-137: In this article, the "dead letter" status of a law
is analyzed in terms of speech act theory. The analysis is based on previous
discussion of speech act theory and legislation, as well as on two court
cases, one American and the second Israeli, in which the notion of the "dead-letter"
status of a law is central. From an initial assumption that the source of
a "dead-letter" law is one of the preparatory conditions, in that
the hearers -- members of general public -- are unable to fulfil the law,
hence do not fulfil the condition "Hearer is able to do Act. Speaker
believes that H is able to the act," it is shown that the propositional
content condition, i.e. the semantic structure of the provision, may also
be a source for converting a legislative text into a dead letter.
Legislation and legal institutions are related in two
ways. First, most legal institutions exist by virtue of legislative rules.
Secondly, legislation can only take place within the framework of a legal
institution.
To clarify what legal institutions are, attention is paid
to MacCormick's distinction between abstract institutional legal concepts
on the one hand and particular legal institutions exemplifying such concepts
on the other. MacCormick's classification, consisting of institutive rules,
consequential rules, and terminative rules of legal institutions, is extended
with three additional classes, namely, constitutive rules, content rules
and invalidating rules. A test shows that complete legislation constituting
a certain class of legal institution contains rules of all distinguished
classes.
Legislation takes place by appeal to power-conferring
rules that form part of a legal institution. The structure of power-conferring
rules is shown to be:
The expression of legal judgments having certain states
of affairs as their meanings by certain agents following certain procedures
counts as making these states of affairs part of the legal institution
concerned.
This structure answers to Searle's famous formula `x counts
as y in context c'.
Modern legal systems are characterized as nested sets
of legal institutions that are connected by the exercise of power-conferring
rules.
The component parts of legal institutions are classified.
This leads to a classification consisting of (i) declarative legal judgments
presenting legal states of affairs, (ii) prescriptive legal judgments presenting
legal obligations, (iii) directive legal judgments presenting non-mandatory
norms, (iv) assertory legal judgments presenting legally granted facts,
and (v) expressive legal judgments presenting states of mind.
Attention is paid to the manner in which legal institutions
are socially accepted. Lagerspetz's conventionalist method of grounding
the social existence of legal institutions on shared beliefs is critically
examined and rejected.
It is concluded that the classical idea that legislation
would mainly consist of general rules of conduct is far too simplistic.
Modern legislation rather serves to present images of overall institutional
environments that exert pressure to be socially realized. Legislation has
become a form of institutional landscaping in which legal institutions of
different classes are combined to provide fitting institutional environments.
Finally, a classification of legal institutions is proposed
on the basis of a fourfold distinction between subjects, objects, properties
and relations.
Wouter G. Werner, "Judicial Legislation. The European
Court of Justice as Institutional Landscaper", in Hanneke van Schooten,
ed., Semiotics and Legislation. Jurisprudential,
Institutional and Sociological Perspectives, 159-184: This chapter
examines the constitutionalisation of the founding treaties of the European
Communities by the European Court of Justice as a process of 'institutional
landscaping'. By contrast to the function traditionally ascribed to courts
- the creation of individual mandatory norms of conduct - the European Court
of Justice has acted as a supra-national legislator, fundamentally changing
the inter- and intrastate relations in Western Europe. The constitutionalisation
of the founding treaties of the European Communities underlines that (judicial)
legislation does not consist of mandatory norms of conduct only, but also
- and foremost - of presentations of images of institutional environments
(e.g. the presentation of human rights as part of the legal order of the
Communities). Moreover, the constitutionalisation of the founding treaties
raises questions as to the assumed structure of the judicial discourse and
its relation to juristic (doctrinal) and legislative discourse. One of the
most important types of ruling of the European Court - the preliminary rulings
under article 177 - consists of authoritative interpretations of Community
law, addressed to national courts rather than of binding decisions for the
parties present in the courtroom. Furthermore, recent publications on the
role of different agents in the development of European law indicate that
there is a close intellectual relationship between European judges, practitioners
in European law (lawyers and civil servants) and legal scholars in the field
of Community law. Together, they form a relatively homogeneous "semiotic
group" favouring the creation of a supra-national legal order. e-mail:
W.G.Werner@bsk.utwente.nl
The use of legislation as a policy instrument is widespread
in modern welfare states. In the last decades the preservation of the benefits
of the welfare state has caused problems. During the period between 1960
and 1980 both the height of the collective costs and the amount of statutory
law were doubled. At the same time problems arose concerning the implementation
and enforcement of instrumental legislative rules. The cost aspect, the
decreasing effectiveness of instrumental legislation, and the increasing
number of inconsistencies in legislative systems became objects of concern.
Several modern legal theories offer explanations of the
failing effectiveness of state legislation, criticising the instrumental
view on legislation. Three of these theories will be analyzed. The first
theory to be discussed is the theory of reflexive law and autopoiesis, as
presented by Teubner. From a neo-evolutionary point of view on legislation,
Teubner identifies a new type of law that constitutes a reaction to the
instrumental crisis of the welfare state. This new type he terms `reflexive
law'. Furthermore, Teubner conceives of society as divided into subsystems
that are mutually closed. Transfer of information between the subsystems
is distorted by codes inherent in each subsystem. The second theory is the
`Dreistufen-Hypothese' (Three Stages-Hypothesis) of the Polish legal sociologist
Adam Podgórecki. Podgórecki explains the (in)effectiveness
of law by postulating three filters, the first on the individual level,
the second on the level of groups and the last one on the level of the whole
system, which together determine the effectiveness of law. Every legal rule
passes these three filters and is partly distorted by them. The third theory
is the theory of the `semi-autonomous social fields' of the legal anthropologist
Moore. Moore investigates the self-regulating capacity of groups, as well
as the different ways in which spontaneously developed rules interfere with
official law.
On important points, the theories complement each other.
By combining the models, a more comprehensive and differentiated view of
the problems of the effectiveness of legislation is achieved. However, little
attention is paid to the issue of the legitimacy of law. The observation
that the notion of instrumental law focuses on the steering content of legislation,
together with the general recognition that the classical principles are
in serious danger of being irreparably undermined in the welfare state,
puts the question of the legitimacy of instrumental law on the agenda. In
the light of this problem, it is finally examined whether the communication
theory of Witteveen can serve as a new theory of legitimacy. The form of
legitimation of modern law proposed by Witteveen (`dialogical legitimation'),
is a process in which legislation is constructed in two stages, in the initial
stage by the legislator and in the next stage by the `users'. It seems to
give enacted legislation a broader basis. The conclusion is that this alternative
formulation of the democracy principle relates legal validity to the effectiveness
of law. It can provide a solution to the problem of legitimacy as well as
the problem of effectiveness of modern law in the welfare state. Legal rules
acquire their ultimate meanings in a continuous process of interpretation.
In this process of legal transformation by interpretation, legislation can
be harmonized with prevalent ideas in the community. This serves to increase
the effectiveness of legislation. In addition to this, dialogical legitimation
must be able to offer legal safeguards fit to reinforce the safeguards of
traditional democratic legitimacy. Thus, a balanced system of complementary
guarantees can realize the ultimate objective of the constitutional state:
the protection of individual autonomy in society.
[HOME] [BOOKS]
[ORDERING] [JOURNALS]
[ABSTRACTS] [LINKS]
[SPECIAL OFFERS]