Law as Communication (European Academy of Legal Theory Series)

234 Pages·2002·0.66 MB·English

by  M Van Hoecke

LAW AS COMMUNICATION
EUROPEAN ACADEMY OF LEGAL THEORY MONOGRAPH SERIES
General Editors
Professor Mark Van Hoecke
Professor François Ost
Professor Luc Wintgens
Titles in this series
Moral Conflict and Legal Reasoning by Scott Veitch
The Harmonisation of European Private Law edited by Mark Van Hoecke
On Law and Legal Reasoning by Fernando Atria
Law as Communication by Mark Van Hoecke
Legisprudence edited by Luc Wintgens
Law as Communication
MARK VAN HOECKE
Katholieke Universiteit Brussel
OXFORD – PORTLAND OREGON
2002
Hart Publishing
Oxford and Portland, Oregon
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© Mark Van Hoecke 2002
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Foreword
This is a book on all major theoretical aspects of law, using, when appropriate,
an interdisciplinary approach and in that sense it offers a general overview of
legal theory. On the other hand, it is not a descriptive overview, but one in
which the central thesis is the importance of communicationfor and in law. Law
is offering a framework for human interaction and communication. Moreover,
it is made and developed through communication, whether it is a long tradition
creating customary law, parliamentary debates preparing an Act, judicial deci-
sions following or changing precedents, or scholarly debates that will form the
basis for future judicial and statutory changes of the law. Moreover, in our plur-
alist societies, such wide communication, in which not only lawyers, but also
politicians, mass media and the public at large may participate, especially when
important moral or political issues are involved, is the main basis for the legiti-
mationof the law. Reaching a consensus on values through a permanent open
and free communication has increasingly become the alternative for “absolute
truths” offered before by dominating ideologies or religions.
Parts of this book were, in a previous draft, written as early as 1979, other
parts in the last few years. Some parts draw to a more or less important extent
on earlier published work (although mostly not published in English), but most
of the text has not been published before. Earlier versions have been used as
basis for my lectures on Jurisprudence to the students in the Master’s Course in
Legal Theory at the European Academy of Legal Theory in Brussels, from 1992.
Discussions with them helped considerably to develop my ideas further and
improve this final version, including its wording, for which successively several
students, who are native English speakers, have been extremely helpful. I prefer
to thank all of them in general, as mentioning some names would probably do
injustice to others. The same goes for all the colleagues with whom I had dis-
cussions over the years and/or learned a lot from their writings, but they will
mostly find their names mentioned at least somewhere in this book. Finally, I
want to thank especially François Ost, who made useful comments on the sec-
ond last version of my manuscript, and with whom I have had, since 1979 when
we met for the first time at the IVR World Congress in Basel, Switzerland, a
long-lasting and perfect cooperation, both scholarly and organisationally,
mainly within the frame of our European Academy of Legal Theory.

Contents
1 Introduction 1
1.1 Stories about Law 1
1.2 A Communicational Approach to Law 7
2 Defining “Law” 13
2.1 How to Construct a Definition? 13
2.2 How to Delimit the Empirical Reality We (Will) Call “Law”? 14
3 (Possible) Characteristics of Law 17
3.1 Human Behaviour, Human Interaction and Law 17
3.2 Law as a Set of Norms 19
3.3 Law as an Institutionalised Normative System 21
3.3.1 Formal Institutionalisation 21
3.3.2 Sociological Institutionalisation 24
3.3.3 Professional Institutionalisation 26
3.4 Law and State 27
3.5 Law and Coercion 33
3.6 The Autonomy of Law 37
3.6.1 Formal Autonomy 37
(a) Circularity 37
(b) Operative Closure and Cognitive Openness 39
(c) Types of Autonomy 40
3.6.2 Substantive Autonomy 42
(a) Which Kind of Autonomy? 42
(b) Degree of Autonomy 45
3.7 Closure and Comprehensiveness of Legal Systems 52
3.8 Law and Culture 56
3.8.1 General Culture 56
3.8.2 Legal Culture 57
(a) Legal Culture in Society 57
(b) Lawyers’ Legal Culture 58
(c) Legal Culture and Legal Harmonisation 58
3.9 Law and Justice 59
4 The Functions of the Law 61
4.1 Structuring Society 62
4.1.1 Political Power 63
4.1.2 Social Cohesion 64
viii Contents
4.2 Facilitating the Individual’s Life 65
4.2.1 Creating Spheres of Autonomy 67
4.2.2 Bringing about Desirable Behaviour 68
4.2.3 Coordinating Human Behaviour 68
4.2.4 Facilitating Private Arrangements 69
4.2.5 Allocating Resources 69
4.2.6 Redistributing Goods and Services 70
4.2.7 Solving Conflicts 71
5 The Concept of a Legal Norm 73
5.1 Norms as Reasons for Human Action 74
5.2 Norm-Sender and Norm-Receiver 80
5.2.1 The Norm-Sender 83
5.2.2 The Norm-Receiver 86
5.2.3 The “Norm-Sender” of Non-Statutory Norms 88
5.3 Internal and External Aspect of the Norm 89
5.4 The Structure of Norms 91
5.4.1 The Basic Structure of a Norm 91
5.4.2 The Elements of a Norm 94
5.4.3 The Characteristics of Legal Norms 96
(a) Legal Norms as Means for Ends 96
(b) The Formality of Legal Norms 97
5.5 The Concept of “Right” 100
5.5.1 Types of “Rights” 100
5.5.2 Types of Legal Relations 102
6 The Concept of a Legal System 105
6.1 A “Basic Norm” or a “Rule of Recognition” as Closing Rule
for a Legal System? 105
6.2 The Structure of a Legal System 109
6.2.1 What Kind of System? 109
6.2.2 What is Structured and How? 110
(a) The Machinery of Law 110
(b) Hierarchy, Anarchy or Circularity? 112
(c) Circularity: Game or Communication? 113
(d) The Building Blocks of Legal Systems 115
(e) Coherence 118
6.3 Form and Substance: the Structure of Legal Systems and
Conceptions of Democracy 119
7 Methodology of Law 125
7.1 The Nature of Legal Thinking 125
7.2 Law and Language 128
7.2.1 Language as a Means of Communication 128
7.2.2 Legislation as Communication 130
Contents ix
7.3 Methodology of Legislation 131
7.3.1 Legislative Definitions 131
7.3.2 The Formulation of Legal Norms in Legislation 134
7.4 Interpretation of Statutes 134
7.4.1 Interpretation, Meaning and Context 136
7.4.2 The Plain Meaning Rule 138
7.4.3 Methods of Interpretation 140
(a) The Grammatical Method 140
(b) The Systemic Method 140
(c) The Use of Legislative Materials 142
(d) The Historic Method 143
(e) The Teleological or Purposive Method 144
7.4.4 Weighing and Using the Different Interpretation Methods 150
7.4.5 Interpretive Choices, Interpretive Opposites 152
(a) General Interpretive Opposites 152
(b) Specific Interpretive Opposites 155
7.5 Legal Principles and Interpretation 160
7.5.1 Legal Principles and Legal Rules 160
7.5.2 Unwritten Legal Principles in Judicial Decisions 161
7.5.3 Types of Unwritten Legal Principles 163
(a) Structural Legal Principles 163
(b) (Purely) Ideological Legal Principles 164
7.5.4 Legal Principles and the Interpretation of Statutes 165
(a) Interpretation by Analogy 165
(b) Purposive Interpretation 166
7.5.5 Legal Text, Rule, Principle and Political Theory 167
7.5.6 General Principles as “Ius Commune” 168
7.5.7 Structuring Legal Principles 170
7.5.8 Legitimation of the Judicial Use of Unwritten Legal
Principles 171
7.6 The Role of the Judge 171
7.7 The Role of Legal Doctrine 178
7.7.1 The Importance of Legal Doctrine 178
7.7.2 The Task of Legal Doctrine 180
(a) Describing the Law 180
(a) Systematising the Law 181
7.7.3 The Paradigm of Legal Doctrine 182
8 Legitimation of Law 187
8.1 The Importance of Legitimation for Law 187
8.2 Levels of Legitimation 188
8.3 Types of Legitimation 190
8.3.1 Formal Legitimation 191
8.3.2 Substantive Legitimation 195
x Geoffrey Samuel
8.3.3 Communicative Legitimation 197
(a) A Framework for Communicative Legitimation 198
(b) Communicative Legitimation in Law 199
9 Conclusion 203
9.1 Argumentation Theory 207
9.2 Theory of Democracy 210
Index 217