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Law as Communication : European Academy of Legal Theory Series - Mark Van Hoecke

Law as Communication

European Academy of Legal Theory Series

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Human interaction and communication are not only regulated by law, but such communication plays an increasing role in the making and legitimation of law, involving various kinds of participants in the communication process. The precise nature of these communications depends on the legal actors involved -- for instance legislators, judges, legal scholars, and the media -- and on the situations where they arise - for instance at the national and supra-national level and within or between State law and non-State law. The author argues that our conception of legal system, of democracy, of the legitimation of law and of the respective role of judges, legislators and legal scholars should be based on a pluralist and communicative approach, rather than on a monolithic and hierarchical one. This book analyses the main problems of jurisprudence from such a communicative perspective

In a very sophisticated manner Mark Van Hoecke tackles some thorny issues about law and legal institutions that have baffled the legal field for some time a valuable contribution to our understanding of the phenomena of law and legal discourse. Yu Xingzhong, Chinese University of Hong Kong The Law and Politics Book Review September 2003 Mark van Hoecke attempts...to give a comphrensive account of the nature of law. It is a very ambitious goal - which largerly succeeds... Carl Lebeck ARSP, Band 92/3 (2006)

Introductionp. 1
Stories about Lawp. 1
A Communicational Approach to Lawp. 7
Defining "Law"p. 13
How to Construct a Definition?p. 13
How to Delimit the Empirical Reality We (Will) Call "Law"?p. 14
(Possible) Characteristics of Lawp. 17
Human Behaviour, Human Interaction and Lawp. 17
Law as a Set of Normsp. 19
Law as an Institutionalised Normative Systemp. 21
Formal Institutionalisationp. 21
Sociological Institutionalisationp. 24
Professional Institutionalisationp. 26
Law and Statep. 27
Law and Coercionp. 33
The Autonomy of Lawp. 37
Formal Autonomyp. 37
Circularityp. 37
Operative Closure and Cognitive Opennessp. 39
Types of Autonomyp. 40
Substantive Autonomyp. 42
Which Kind of Autonomy?p. 42
Degree of Autonomyp. 45
Closure and Comprehensiveness of Legal Systemsp. 52
Law and Culturep. 56
General Culturep. 56
Legal Culturep. 57
Legal Culture in Societyp. 57
Lawyers' Legal Culturep. 58
Legal Culture and Legal Harmonisationp. 58
Law and Justicep. 59
The Functions of the Lawp. 61
Structuring Societyp. 62
Political Powerp. 63
Social Cohesionp. 64
Facilitating the Individual's Lifep. 65
Creating Spheres of Autonomyp. 67
Bringing about Desirable Behaviourp. 68
Coordinating Human Behaviourp. 68
Facilitating Private Arrangementsp. 69
Allocating Resourcesp. 69
Redistributing Goods and Servicesp. 70
Solving Conflictsp. 71
The Concept of a Legal Normp. 73
Norms as Reasons for Human Actionp. 74
Norm-Sender and Norm-Receiverp. 80
The Norm-Senderp. 83
The Norm-Receiverp. 86
The "Norm-Sender" of Non-Statutory Normsp. 88
Internal and External Aspect of the Normp. 89
The Structure of Normsp. 91
The Basic Structure of a Normp. 91
The Elements of a Normp. 94
The Characteristics of Legal Normsp. 96
Legal Norms as Means for Endsp. 96
The Formality of Legal Normsp. 97
The Concept of "Right"p. 100
Types of "Rights"p. 100
Types of Legal Relationsp. 102
The Concept of a Legal Systemp. 105
A "Basic Norm" or a "Rule of Recognition" as Closing Rule for a Legal System?p. 105
The Structure of a Legal Systemp. 109
What Kind of System?p. 109
What is Structured and How?p. 110
The Machinery of Lawp. 110
Hierarchy, Anarchy or Circularity?p. 112
Circularity: Game or Communication?p. 113
The Building Blocks of Legal Systemsp. 115
Coherencep. 118
Form and Substance: the Structure of Legal Systems and Conceptions of Democracyp. 119
Methodology of Lawp. 125
The Nature of Legal Thinkingp. 125
Law and Languagep. 128
Language as a Means of Communicationp. 128
Legislation as Communicationp. 130
Methodology of Legislationp. 131
Legislative Definitionsp. 131
The Formulation of Legal Norms in Legislationp. 134
Interpretation of Statutesp. 134
Interpretation, Meaning and Contextp. 136
The Plain Meaning Rulep. 138
Methods of Interpretationp. 140
The Grammatical Methodp. 140
The Systemic Methodp. 140
The Use of Legislative Materialsp. 142
The Historic Methodp. 143
The Teleological or Purposive Methodp. 144
Weighing and Using the Different Interpretation Methodsp. 150
Interpretive Choices, Interpretive Oppositesp. 152
General Interpretive Oppositesp. 152
Specific Interpretive Oppositesp. 155
Legal Principles and Interpreationp. 160
Legal Principles and Legal Rulesp. 160
Unwritten Legal Principles in Judicial Decisionsp. 161
Types of Unwritten Legal Principlesp. 163
Structural Legal Principlesp. 163
(Purely) Ideological Legal Principlesp. 164
Legal Principles and the Interpretation of Statutesp. 165
Interpretation by Analogyp. 165
Purposive Interpretationp. 166
Legal Text, Rule, Principle and Political Theoryp. 167
General Principles as "Ius Commune"p. 168
Structuring Legal Principlesp. 170
Legitimation of the Judicial Use of Unwritten Legal Principlesp. 171
The Role of the Judgep. 171
The Role of Legal Doctrinep. 178
The Importance of Legal Doctrinep. 178
The Task of Legal Doctrinep. 180
Describing the Lawp. 180
Systematising the Lawp. 181
The Paradigm of Legal Doctrinep. 182
Legitimation of Lawp. 187
The Importance of Legitimation for Lawp. 187
Levels of Legitimationp. 188
Types of Legitimationp. 190
Formal Legitimationp. 191
Substantive Legitimationp. 195
Communicative Legitimationp. 197
A Framework for Communicative Legitimationp. 198
Communicative Legitimation in Lawp. 199
Conclusionp. 203
Argumentation Theoryp. 207
Theory of Democracyp. 210
Indexp. 217
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841133416
ISBN-10: 1841133418
Series: European Academy of Legal Theory Series
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 240
Published: 23rd October 2002
Country of Publication: GB
Dimensions (cm): 23.4 x 15.6  x 1.4
Weight (kg): 0.49
Edition Number: 1

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