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


Let me examine the legal norm as a "representative" of legal quality, i.e. as a structure of its transformation. The legal norm is a source of law and a source of information. Being a source of law, it imparts norm to behaviour and institutionalizes it, granting certain legal rights and imposing legal obligations upon the participants in social relations. Being a source of information, the legal norm communicates (informs) what should the expectations be of normalcy in the behaviour of the recipients of that information according to the legal order.

Let me recall at this point the structural theory of transformation introduced by Claude Lvi-Strauss. The structural approach to the dynamics inside normative reality is an interpretative one. Understanding normative matter is understanding the mechanism of generating or reconstructing some "text" of signs of legal normativity (legal form, a series of legal forms, a mechanism of operating of the legal form, legally qualified form of a factual situation, legally qualified forms of a set of persons and situations, i.e. legal institutes, etc.). It confronts the level of observation (of variants of such "texts") with the level of the constructions (the invariant "language" of generating these "texts"). Structuralism in law explicates the manner in which the invariable legal constructions generate the infinite number of variants of legal phenomena. More importantly, the interpretation in the different variants of legal phenomena reveals the invariable legal constructions. According to the characterization of the legal norm as a structure of transformation its elements are four and consist of the elements of two norm-prescripts, of two connections of condition and rule: "p_q" (if p then q).< BR>
The "p_q" connection is a correlative one: it works as a mechanism insofar as p is a condition for the consequences q and insofar q are consequences of the condition p. In its existence as a norm (as a source of law) this correlation is invariable. This means that as a bearer of normative content it is not a product of lesser elements which would give structure to it. Therefore, it is the unit of the "language" of law. Logically, the p_q connection is relation between propositions. P is one proposition and q, another. That connection would be understood by legal reasoning insofar as these propositions can be interpreted as possible variants of the structuring operation of the legal concepts according to the context of the rules of the juridical code of communication. In this way the legal discourse is represented as a sequence of transformations. Law becomes a "language" for legal reasoning. The relation between law and reasoning is e relation of invariables in the legal forms, their transformations and the rules of that transformation on the one hand, vis--vis thought, on the other.

The normative dependence p_q is a dynamic one: it produces action. This action is legal. The formal correlation between legal norm and factual circumstances stipulated in its hypothesis is a structure of a transformation: it puts into operation the action of law. For instance, in the variant of an emergence of a jural relationship this gives rise to a structure of law, containing diverse variants of its development __ the immediate and further consequences.

As a norm of legally bound (Sollende) behaviour, namely prescript, the legal norm is a universal. This means that it is a structure of a set of variants of legal manifestations, known or unknown, realized or not, which in principle are interchangeable (equally probably) until they enter into a correlation with concrete facts and are reduced to a single definite variant of legal meaning through interpretation.

As information, the legal norm is a description of structures of a legal order. It communicates what, according to the positive legal order, is the measure of correspondence between norm and actual behaviour. The possibility for this is embedded in its being recognized as a universal rule by everybody. This is the principle of universalizability which underlies the regulative function of law. This principle is understood as the possible variants of "statements" in the normative "language," of the structuring dependence "if-then" through which the mechanism of normative causality also works. It communicates the condition of the rule of behaviour __ in that condition the jural relationship is in an expectant form. The condition is an expectation of the rule. As an expectation the jural relationship can be described both logically and normatively. In a logical sense it is a hypothesis about a legal order which can be thought of by the mind (hence, the potential for cognitive processes, which Niklas Luhmann discusses). In a normative sense this expectation is described in two aspects:

  • it is the expectation of the operation of the principle of universalizability, i.e. this expectation has a universal nature: that hypothesis is accepted and acknowledged by everyone and is thereby a prerequisite for semantic equalization;

  • it is an expectation of the operation of normative causality: it is the expectation of the possible transformations of legal significance, contained in that jural relationship.

The real cognitive processes through which the legally required (Sollende) is transformed into a communication, impart dynamism to the logic of legal prescripting and thus they not only actually impart legal essence to reality. Along with that they impart to the very interpretation of the legal norms as a source of law both its quality of a manner of applying law to concrete cases (through a variant of its "suitable to the occasion" interpretation) and the quality of knowing law in the essential sense of the word (as scientific knowledge): to foresee the possible legal solutions and the conditions for accepting them. In this way knowledge enters law not least as a program for action. That confirms the promise of the very mechanism of transforming legal matter.

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AS/SA Nº 6/7, Article 7 : Page 5 / 11

© 1999, AS/SA

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