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


I share Kelsen's belief in an optimally pure explanation of the legal phenomena and assume that this is a prerequisite for the development of law. From this position the above-mentioned fourth pattern provides the greater number of challenges and topics for discussion.

To separate the law from its political framework and political grounds for legitimacy proves to be difficult. Acquis Communautaire is a genuine legal phenomenon unbound with political basis and justification. Being a leap in the course of development of law, it can hardly be placed in traditional constructs. It will be much easier to politically legitimize the transfer of sovereignty through a traditional structure such as the European Union __ a union between States bound by international treaties.

However, this understandable and recognizable structure can not disregard the acquis of the European Community. It is influenced by the economic community and in fact serves as its legitimation and representation and strives at the overall objective of the Community __ common legal order and common jurisdiction for control.

As is well known, the European Court of Justice is the body ensuring both the institutional equilibrium and the legal identity of the European Community. The significance of the uniform application of the acquis communautaire is not expressed merely as a guarantee of the rule of law or as causa finalis of the cooperation between national jurisdictions. It is much more of a process of creating a new legal order through the resolution of disputes about semantic unconformity. This power it has has caused the Member-states of the European Union to sign declarations on subordination to its jurisdiction as regards a number of acts of the so-called Third Pillar before the coming into force of the Treaty of Amsterdam with a view to utilizing and facilitating interstate cooperation. We find another consequence in the fact that through the case- law of the European Court of Justice a system of rules emerges which can actually be described as "European administrative law": the displacement of national borders inwards respectively, inwards and "sideways" __ neighborly (towards regions) and outwards (towards Communities) gives rise to the need for a general (regional and Community-wide) administrative arrangement; the semantic legal equalization of the social communities within the new borders gives rise to the need of approximation of the administrative servicing on the basis of the common principles of the Member-states.

11. A lawyer reasons as he/she interprets, including his/her logical propositions, but that interpretation is transformed into an argument through the so-called "thesis-antithesis" reasoning. As a principle of the practical discourse concerning the switching-over of the semantic results of legal communication the "thesis-antithesis" principle is not only a technique of justification and of quasi-verification in discussions in court or in scientific fora nor is it only a particular logic of the discourse which, unlike any logic, make syntheses, including through the regulated passing of one discourse into another with the aim of filling up the so-called logical discontinuation (Habermas, Toulmin). When the interpretation is brought out in public this antithetic principle achieves conceptual guarantees, too. They can be assessed positively or negatively.

Viewed historically, the set of legal concepts forms a sequence of transfer of significances, of signifying and re-signifying, i.e. it illustrates a genealogy of interpreted significances.

A fresh significance of a given concept, interpreted and adopted in a given discussion preserves its correlative links with the rejected in the same discussion significances through bridges of meaning. These significances, rejected and bordering in meaning with the newly formed concept play the role of conceptual boundaries, of an immediate historical context and a boundary of the origin of this new knowledge. Likewise, the significances which have been discussed as distinguishing or as increasing the volume of the old significance out of which the new one has originated preserve in historic terms their functional connection with it but do not play the meaning role of a genealogical context because they are logical borders discovered in the course of the discussion which it has manifested inside the concept.

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AS/SA Nº 6/7, Article 7 : Page 8 / 11

© 1999, AS/SA

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