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Introduction: law and signs
Should we try to account for a law as an assemblage of signs, as Bentham did? The objections are insurmountable. Law (in the sense that is relevant here) is the systematic regulation of the life of a community by standards treated as binding the members of the community and its institutions. A law is a standard that is part of such a systematic form of regulation. Many such standards have no canonical linguistic formulation (that is, no form of words which, according to law, determines the content of the standard). Lawyers in common law systems are familiar with such norms: murder may be a criminal offence (or slander may be a tort, or certain agreements may be enforceable as contracts…), not because any person or institution uttered a ruling that it should be so, but because the institutions of the legal system customarily treat murder as an offence. Moreover, common law systems cannot be distinguished from legal systems consisting only of linguistic acts, because no legal system consists only of linguistic acts. A civil law system with a civil code and a criminal code may make murder an offence (and slander a tort, and contracts enforceable…) by a written act, and it may be a written constitution that gives legal force to the civil code and to the criminal code. But the validity of the written constitution will depend on a norm which is not created by the use of signs: the rule that that text is to be treated as setting out the constitution.
Bentham and his disciple, John Austin, knew that there are rules of law that were not laid down in language. Preserving their view of law as signification of volition, they accounted for such laws as tacit commands of the sovereign. That device is not merely convoluted, it lacks the resources it would need to explain the existence of a norm. In the right circumstances, it is certainly possible to communicate without using signs (and in particular, it is possible to convey a volition, backed by a threat of force, just by saying or writing nothing). But silence can only be a means of communication when the circumstances give it a meaning. We can say that a tacit command has been issued only if it is possible to identify features of the situation that distinguish the tacit communication from mere inaction communicating nothing [see Hart 1994, 45–48]. Those features do not generally accompany customary rules (in fact, they generally do not accompany customary rules).
There is another conclusive reason not to say that a law is an assemblage of signs. When a lawmaking authority does use language to make law, the resulting law is not an assemblage of signs. The reason for that conclusion is a general fact about communication: a communicative act is the use of an assemblage of signs to some effect. When an authority uses words to make law (as when a legislature uses a lawful process to pass an enactment that is within its powers), the law that it thereby makes is a standard (or standards) whose existence and content are determined by the legal effect that the law ascribes to that use of words. When a law is made by the use of signs, that law is a standard for conduct, and not an assemblage of signs.
A law, therefore, is not an assemblage of signs, and law is not necessarily made by the use of language, and every legal system requires norms that are not made by the use of language. Laws are not linguistic acts, or even communicative acts. They are standards of behaviour that can be communicated (and may be made) by using language.