Towards a New Analytical Framework for Legal Communication

Abstract

This article develops a model first proposed in my book Jurisprudence and communication [67]. It takes as its starting point the generally conception that legal rules are valid norms, involving a normative content and expressing themselves in reality through observable conduct. This dualistic character of law is central. Law is both fiction and factual, ideal and real. But the viewpoint that a legal rule is a manifestation of validity in reality, through empirical acts, raises the question how rules as (valid) fictions can be known and understood in their linguistic form. How is meaning attributed to the legal words and how do these words relate to the world of fact? Taking an institutional-pragmatic approach as a starting point, an analytical model is created that can be used as an instrument for the relationship between legal rules as thought objects existing only in the mind, and legal rules as observable conduct. This model seeks to revise the classical models of legal communication that basically focus on the unilateral flow of legal information between ‘senders and receivers’ and their claim of linear causality between rules and conduct. The model here constructed in the theoretical part is then applied to several case studies, in order to analyze the construction of meaning in actual use. Two fundamental rights—the older codified in 1798 and the more recent codified in 1983—in the Dutch Constitution have been analyzed using the model as an instrument. Further, the remarkable shifts in article 96 of the Constitution, the declaration of war, and its consequences, resulting in a new category of war—the armed conflict—have been analyzed, as well as the phenomenon of ‘peacekeeping missions’ involving actual warfare. The new war terminology has created vagueness with respect to the clear-cut division between war and peace, which has been reflected in several cases before Court, including the Eric O. case. The present analysis of the case studies indicates that the model was not in all cases completely tailored to the facts: for example, in the case study on article 96 a broad spectrum of observable legal and non-legal actors dominated the facts in such a way that the model did not fully cover it. The observations on my book by the three respondents in this special issue have contributed to the adaptation and extension of the model. In the Postscript my responses suggest some ways in which their ideas can be implemented.