Jeana Sharankova: "Semiotic Aspects of the Transformation of Legal Systems"


4. As is well-known, a system is a cognitive pattern of a certain order, thereby explaining the principle of its organization and articulating into a structure its building blocks in such a way that their functional connection should permanently and limitlessly produce action effective for the theoretical development and practical significance of the system.

Each unit in a given system of law is a structure or a structural element, insofar as it possesses legal properties. If it is to solve the problem of the identification of law in every manifestation of its structure within the context of its organization of structuring, the cognitive pattern has to be effective in explaining the mechanism of each legal form as a structuring of formal correlations of legal semantics between neighboring elements or their combinations in some order. This must be possible regardless of whether this order is outlined as a structure (in the sense of an edifice, a construction), as a syntactic, i.e. consecutive link, or as a type of hierarchy __ a classification (the so-called "genealogy trees," stemmata), or a system (simple or complex).

The systems theory offers the following pattern for the apparatus of categories of law: the legal concepts are the elements of its structure and the system works through their functional linkage by the categories. This is possible through the principle of classification. If we use the conception of semantic fields, we will bind up the classification inherent in law with the legal regime. This is confirmed by the heritage of the Roman jurists. In my view, they differentiate the specifically legal semantics and create one of the fundamental dogmatic patterns of law. This would be an example in a diachronic perspective __ of a type of transformation in the development of law which has created the dogma of legal semantics, which is still in operation today.

5. Here I understand legal dogmatics as a set of patterns (models) in line with which law is formed and operates. In my view, juridical experience __ the development of law __ is the sum total of legal formulae and rules. In it also lies the continuity of law throughout all transformations it undergoes. In this sense the development of legal dogmatics is coincidental with the development of law itself. The ways in which people work with these formulae and rules take shape and develop in parallel. Legal reasoning is characterized by regularities pertinent to it and develops via specific models of legal reflection. As a set models and ways of operating with legal stipulations it develops into what we can call a juridical paradigm. Differing modes of legal reflection are prevalent in differing epochs, moulding differing patterns of thinking. Those patterns that are productive for the law's specific operation are superimposed and stabilized as lasting dogmas. Here, with the example of fashioning (Gestaltung) of legal dogmatics we attempt to trace the arising and establishment of dogmatic patterns and to investigate how the development of a rational activity like a lawyer's reasoning, paralleled by the law's development results in a practically legal solution of concrete social problems fitting them into and qualifying them within legal reality.

Law can be individualized as a particular kind of reality through its semantics. Legal semantics provides qualitative autonomy of law. I hypothesize law not to consist solely of the significance "legal". Along with the kinds of significance (signifé‚, according to Ferdinand de Saussure) it consists of the links between the fact (the social problem or dispute) and the legal norm, as well as of the regimes under which the facts of the case are subsumed. The legal significance of a given circumstance consists in the legal regime under which it is subsumed. I define this as its legal semantics. This significance is imputed by the legal consequences of the operation of the law itself. Under the operation of the law social reality acquires legal semantics. Law sets it in order by transforming its non-legal significance into a legal one. Without this transformation the law could not regulate the social realia, semantically incompatible with its normative nature. It accomplishes this transformation precisely as a practical act: with a view to solving a social problem. And involves subjecting reality to a particular legal regime by applying legal consequences to that reality.

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AS/SA Nº 6/7, Article 7 : Page 3 / 11

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