Legal Theory Systems

Download Law as Communication (European Academy of Legal Theory by Mark van Hoecke PDF

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By Mark van Hoecke

Human interplay and verbal exchange should not in simple terms regulated via legislations, yet such conversation performs an expanding function within the making and legitimation of legislations, concerning several types of contributors within the conversation method. the suitable nature of those communications is dependent upon the felony actors concerned, similar to legislators, judges, criminal students, and the media, and at the events the place they come up, equivalent to on the nationwide and supra-national point and inside of or among kingdom legislation and non-State legislations. the writer argues that our perception of criminal method, of democracy, of the legitimation of legislations and of the respective function of judges, legislators and criminal students will be in keeping with a pluralistic and communicative technique, instead of on a monolithic and hierarchical one. This ebook analyzes the most difficulties of jurisprudence from one of these communicative standpoint.

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3 Professional Institutionalisation Professional institutionalisation is not a condition for the existence of a legal system. Functional institutionalisation suffices and is, in primitive or other more limited non-state legal systems, possible without any professional institutionalisation: the chieftain, acting as a judge, is in the first place the leader of the group; the members of a committee, which makes the rules within some sports club and/or has the power to make authoritative interpretations and applications of them, may all have their full-time professional activity outside the field of sports.

Moreover, it does not fit very well with legal reality. Today, legal systems have more and more a circular structure when it comes to legitimation. “Circularity” means that the higher norms within the hierarchy of a legal system not only determine the lower ones, but also in turn, are determined by these 38 Law as Communication lower ones. 45 He, rightly, notes that this is not an error or a failure of the legal system. 47 Legal practice offers, indeed, more and more examples of circularity. A first one is the hierarchy of law within the European Union.

In a way, there is nothing exceptional about this requirement, it is a necessary condition for a legal system to exist. But the basic or raw material comes, to a very large extent, from outside the legal system. As a completely closed system, a legal system simply could not exist. Legal systems are thus “cognitively” open to the external world. However, they remain “autonomous”, because they are “operatively” closed: external data are selected and adapted according to an internal logic of the legal system: “Self-reproduction presupposes that the system is influenced by its environment.

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