Social and Symbolic Effects of Legislation Under the Rule of Law (original) (raw)
Related papers
Symbolic Legislation: An Essentially Political Concept
SSRN Electronic Journal, 2014
Symbolic legislation commonly has a bad name. In critical sociological studies, it refers to instances of legislation that are to a large extent ineffective and that serve other political and social goals than the goals officially proclaimed. Since the nineties of the last century another concept of symbolic legislation is developed, in particular in Dutch legislation theory. In this more recent and more positive understanding, symbolic legislation is an alternative legislative technique that differs from the traditional top-down approach. The question that is addressed in this chapter, is whether there is a real-in the sense of epistemologically real-difference between the two concepts of symbolic legislation. On what grounds can the allegedly negative and positive concepts be differentiated from each other? Is it possible that one instance of legislation can be classified as symbolic legislation both in the negative sense and in the positive sense? Are they two sides of the same coin or do they constitute mutually exclusive categories? As will be shown, the distinction between the two concepts cannot be made on scientific grounds only, but involves considerations of a political kind.
Symbolic Legislation Under Judicial Control
Since the Enlightenment the claim of law to rationality has become an indispensable standard for all current forms of law-making. However, the wellknown tension between certain standards of rationality and legislation on the basis of democratic majority rule – that legitimizes law-making in view of voluntas not ratio and that takes place in the realm of politics – is tested to its limits by symbolic laws. Those laws, by defi nition, are characterized by an element of deception, a discrepancy between their manifest purposes that cannot be achieved and latent purposes that remain hidden. This paper examines the different notions of ‘symbol’ as well as the different conceptions and standards of rationality under the German Basic Law and asks whether judicial review is able to tackle the problem of (deceptive) symbolic laws.
Legislation and the Political: Towards Critical Legisprudence
Legislation - the social practice of creating abstract legal rules in a (usually) parliamentary process - inherently belongs to the sphere of the political. This is because, as Pashukanis observed, all law is born out of conflict of interests. Legislative rules are aimed at striking a certain balance between such conflicted interests, rendering winners (beneficiaries) and losers (maleficiaries). The actual social effects of legislation are difficult to judge in the abstract, and therefore empirical research is necessary. The methodology proposed in the Polish context by Paweł Chmielnicki is an interesting step in this direction. Unmasking the dimension of the political, i.e. the social antagonisms, in legislation calls for the development of a new branch of critical legal theorycritical legisprudence. In contrast to non-critical legisprudence inaugurated by Luc Wintgens in the 1990s, critical legisprudence rests on the solid pillars of a hermeneutic of suspicion and emancipatory goal which are common to all strands of critical legal theory. In this perspective, any single legislative rule is treated as only the momentary outcome of ongoing social struggles. There is no perfect compromise and a 'harmonious' society, at least within capitalism, is impossible. The practical task of critical legisprudence is, therefore, to become the 'lobbyist of the people', and on the basis of solid empirical researchfor instance, along the lines of analytical realism proposed by Chmielnicki, propose legislative solutions which will reduce oppression and promote emancipation.
The Urgency of Philosophical, Sociological and Juridical Applicability in Legislation
International Journal of Social Science And Human Research
Legislative regulations are drawn up and enacted to ensure that the statutory regulations are adhered to and adequate to fulfil their aims and objectives. Three applicabilities, namely philosophical, sociological, and juridical, strongly influence the effectiveness of statutory regulations. Philosophical applicability shows that laws and regulations must follow intellectual values that live in society. At the same time, sociological bearing states that the community recognizes any rule and regulation and meets the people's needs and developments. Juridical applicability indicates that an authorized institution must make the statutory regulations stipulate the content is suitable. The form of the Law does not conflict with the higher rules, and the legislator makes it through a predetermined procedure. This research is a descriptive analysis using a normative juridical approach. The study results indicate that the non-compliance of statutory regulation to the three applications w...
Legislation in Context : Essays in Legisprudence
The essays in this volume set out to provide a rational framework for legislation. Whilst legislation and regulation is the result of a political process, this volume considers whether they can also be the object of theoretical study. It examines the problems that are common to most European legal systems by applying the tools of legal theory to legislative problems ('legisprudence'). While traditional legal theory deals predominantly with the question of the application of law by a judge, legisprudence enlarges the scope of study to include the creation of law by the legislator. The essays published in the volume develop a new range of insights into the relationship between legislative problems and legal theory in a way that will interest legal scholars throughout the world. Specifically the work will attract the attention of those involved with constitutional law, EU law, human rights law and legal theory. Contents: Series preface; Introduction, Luc J. Wintgens and Philippe Thion; Part I Theory of Legislation: Legitimacy and legitimation from the legisprudential perspective, Luc. J. Wintgens; Lawmaking: between discourse and legal text, Wojciech Cyrul; The rule of law as the law of legislation, Tatsuo Inoue. Part II Legislation, Rules and Norms: Legislative techniques, Peter Wahlgren; Questioning alternatives to legal regulation, Philippe Thion; The emergence of new types of norms, Pauline Westerman; A peacekeeping mission as a new category of war? An institutional analysis, Hanneke van Schooten. Part III Legislation and the Disciplines: Grounding behaviour in law and economics, Bruce Anderson and Philip McShane; Legislation and informatics, Marie-Francine Moens; Nulla poena sine lege Parliamentaria? Democratic legitimacy and European penal law, Linda Gröning. About the Editor: Luc J. Wintgens is Director of the Centre for Legislation, Regulation and Legisprudence, and Dean of the Law Faculty at Katholieke Universiteit Brussels, Belgium. Reviews: 'Legisprudence mainly focuses on pragmatic efforts aimed at improving the quality of legislation. The merit of this book is to highlight theoretical aspects and critical reflections. It furthers a deeper understanding of legislation and helps to develop legisprudence as a comprehensive approach to the legislative phenomenon.' Luzius Mader, Swiss Graduate School of Public Administration, Switzerland. 'For too long now, the field of jurisprudence has focused almost exclusively on the judge, inadvertently creating the false impression that processes of interpretation are all that matter in the law. The authors of this volume show how rewarding it is to focus on legislation and on alternative forms of regulation to correct this imbalance; I have found many stimulating thoughts in its pages.' Willem J. Witteveen, Tilburg University
Vilhelm Lundstedt and the Social Function of Legislation
(2013) 1 Theory and Practice of Legislation 33-57
"This paper presents a reappraisal of Vilhelm Lundstedt's theory of legislation, and argues that it has a lot to contribute to theories of modern legal systems. Lundstedt argued that the conceptual apparatus of legal theory – notions of rights, duties, culpability, responsibility, binding legal rules – is fundamentally incapable of contributing anything to our knowledge or understanding of legislation and, by extension, of law. To understand legislation, we must focus instead on its social function, and on what he called samhällsnyttan, loosely, the usefulness of the law to society, or the social benefit it provides. I argue in this paper that, contrary to the standard account, Lundstedt’s rejection of the traditional conceptual apparatus of legal thought is built on a complex theory of the nature of legal knowledge and, hence, of the reality of legal concepts. His claim that legislation must be approached from the perspective of its usefulness to society was not a normative claim in relation to how legislation ought to be interpreted, as his critics assumed, but a descriptive claim as to its nature; and as to the nature of the discretion that legal actors exercise in legislative and interpretive activities. I show that his claim has a sound theoretical basis, and makes a strong case that dealing with the complexities of law, statute and regulation that characterise legal systems today requires an approach that looks beyond internal fit, to the institutional character and social function of law."
Legal Regulation and Communicative Couplings
Law <html_ent glyph="@amp;" ascii="&"/> Policy, 1997
From 1989 to 1991 we studied the relationship between legal regulation and decisions about acceptable risk at off-shore installations in the North Sea. The study focused on the interaction between authorities and private actors, when they develop subsidiary rules, discuss projects, and execute audits. This article discusses the case of regulation within the framework of communicative systems theory; the problem is how to couple differentiated, closed functional systems (e.g., law and economy). Applying empirical data we attempt to create a more complex understanding of the communicative processes, on the basis of which we can elaborate upon the coupling between systems, and the potential effects of law. The point of the article is that the coupling itself may develop into a new independent system (the discursive system). If this is correct and fairly generalizable, legal regulation contributes to the differentiation of society into closed systems. At the practical level the differentiation will have consequences for both regulation and democracy.
The recognition of new social actors and the checkmate of statutory law
The starting point of the ‘Polos de Cidadania’ Research Program of the University of Minas Gerais, in Brazil, is the lack of effectiveness of fundamental rights on a day-to-day basis. Our paper aims to discuss this reality through the theoretical debate of the exhaustion of the legalist paradigm; the concealment of pluralism inherent to legal order; and the questioning of the functions of statutory law in the legal system. When statutory law was converted into the primary social control in the XIX century a series of presuppositions were constructed. We argue that they can no longer stand because such paradigm ignores the dynamics of the application of statutes and its hermeneutical character and it conceals the political consequences of decision making. We will analyze these two aspects from the stand point of four basic presuppositions that support them: that there is a complete or at least a high standard of transparency between the citizen and the legislator; that the statutes have a message accessible to all; that social relations are standard and, finally, that the State is the only way to the solution of social conflict. Using examples of ground research of the ‘Polos de Cidadania’ team in the periphery of Belo Horizonte, Minas Gerais, in Brazil, our paper exposes an experience used to reformulate the traditional presuppositions of the Theory of Law and advance towards a comprehension of Law that can be called pluralist, or dialogical. Our paper will propose a new role for statutory law in a context of contemporary societies, and a path, or a methodology that makes the transition of paradigm an open, inaugural process. With this paper we expect to contribute to the discussion about new methodology of law, to share experiences from different parts of the world in which the methodology of law has been challenged by situations of rights violations, and to diffuse the results of the research conducted in our university in order to perfection it.
The Conflictual Theory of Law A Pragmatist Conception of Laws as Social Institutions
Contemporary Pragmatism , 2020
This article introduces the conflictual theory of law as a new way of understanding laws as struggles over meaning, in which actors create and circulate social knowledge to justify their interpretation of rights. The theory addresses law-production processes and underlying knowledge/power constructs, for example, in legislative deliberations and interactions between politicians and the media. It shares pragmatist commitments to a highly participative version of democracy, attained through the active involvement of all members of society in democratic processes and rejects claims of universally applicable legal “truths” in favour of the constant (re)negotiation of laws between members immediately affected by a law. Pragmatism’s antifoundationalism challenges the dualism between citizens and non-citizens, facilitating the inclusion of the latter in legislative deliberations.
The Sociological Review, 2004
The title of this book, for a start, is perplexing. You might imagine it to be about recent work inspired by Jurgen Habermas, the German social theorist. Or, perhaps, it may suggest theoretical developments since Habermas, on the assumption that his work of, say, the 1980s has been superseded by something else. In a sense, this edited collection does both. There are good summaries of Habermas's original treatment of the public sphere in his book published in German in 1962, eventually and belatedly translated into English in 1989 as The Structural Transformation of the Public Sphere, with the subtitle of An Inquiry into a Category of Bourgeois Society. Structural Transformation. .. is an historical account, a rise and fall narrative, delivering a very pessimistic message concerning how principles of public debate in what became liberal democracy have been eclipsed by manipulative public relations, commercial imperatives in the media and so forth. As contributors to this book acknowledge, Habermas's linguistic turn of the 1970s resulted in him becoming more abstract in his thinking on communication, the orientation to mutual understanding and the division between life world and system. The original account of the public sphere given in Structural Transformation. .. has been challenged on several grounds, such as Habermas's idealisation of a phenomenon that never lived up to its claims for inclusiveness and universal applicability. For Habermas, the public sphere did occur and remains of relevance as, indeed, a prime ideal of democracy, albeit historically with a limited public, propertied men and no women. Social criticism, almost by definition, depends on such an ideal of free and open deliberation in public affairs, otherwise criticism of how politics and its mediation operate today would be without any grounds from which to make the argument that there is, at the very least, room for improvement. This is much more important than nostalgia for a preferable past either imagined or real.