Vol. 13 No. 8 (August 2003)
LAW AS COMMUNICATION, by Mark Van Hoecke. Oxford: Hart Publishing, 2002. 224pp. Hardcover. $65 ISBN: 1-84113-341-8.
Reviewed by Yu Xingzhong, Department of Government and Public Administration, The Chinese University of Hong Kong. Email: xzyu@cuhk.edu.hk
LAW AS COMMUNICATION represents creative work in general jurisprudence with an obvious focus on the communicative nature of law, and it sheds new light on our understanding of law and legal discourse. It is informed by theories of communicative action, psychology, linguistics and autopoietic theories of law, rather than a mere application of Habermas in reshaping jurisprudence. 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. It has updated our knowledge of law to match the newest perspectives and views of theoretical studies, making a valuable contribution to our understanding of the phenomena of law and legal discourse.
The central idea of the book is that law provides a framework for human action – a framework of communication. In this perspective, legal relations including legislative and adjudicative activities are understood in terms of conversation, dialogue, and communicative processes, rather than of traditional models that focus on power relations, such as imposition and acceptance or command and obedience. Here the legal highway allows at least two-way traffic, not just one. Legal systems are never closed systems, but they provide room for negotiation and consultation. Communication and the psychology of the communicators are crucial to understanding the workings of a legal system and the legal reality it generates.
Structurally, the book is organized in the tradition of European legal philosophy. Chapter 1 introduces a communicative approach to law, Chapters 2 through 6 deal with ontological and axiological questions of law, explicating the notion and characteristics of law, mapping the functions of law, and discussing the concepts of a legal norm and a legal system. Chapter 7 considers epistemological and methodological aspects of law, and Chapter 8 offers a discussion of legitimation of law. As a whole it forms a systematic theory based on a communicative action perspective and provides plenty of insights into law and legal discourse.
Fully aware of the intricacies and traps one might confront in attempting to assert a definition of law, Van Hoecke, having carefully guided the reader through the labyrinth of existing perspectives, arrives at a general definition that sees law as a framework for human action. Such a broad definition allows flexibility for understanding the phenomenon of law from many available perspectives and at the same time sets the tone for potential development of new approaches. Since human action implies interpersonal relations that require communication, the framework law offers for human action also creates a framework for human communication. Moreover, law itself is also based on communication between legislators and citizens, between courts and litigants, between contracting parties, and among the various participants of a trial – just to name a few examples. As the author argues, this definition of law is based on current theories and writings and is a time-and-culture-bound perspective.
Under a communication rubric, law is seen as a means for human interaction and not as some autonomous end. Law is not a closed system, but remains open-ended, allowing a broad and pluralistic analysis and accommodating exchange of different points of view. Law, thus, functions to order society and to facilitate human interaction, an idea similar to Lon Fuller’s formula for the functions of law: law as an instrument for social control and facilitator of human interaction. In ordering society, law structures political power as well as legitimating it. Conversely, law also relies on a system of political power for its own legitimation. In facilitating human interaction law creates spheres of individual autonomy by granting a minimum of individual liberties, sanctions undesired behavior and promotes desired behavior, facilitates private arrangements among individuals and among business firms, designates some redistribution of goods and services, and provides mechanisms to resolve conflicts between citizens. But this instrumentalist view of law has a new touch, that is, in the process of structuring society and facilitating human interaction, communication plays a very important role.
In addition to stressing the communicative aspect of law, Van Hoecke also engages the jurisprudential ideas of other scholars, especially such prominent legal positivists as Hans Kelsen and H.L.A. Hart. He does not subscribe to the arguments of the “Grundnorm” by Kelsen, nor Hart’s “Rule of Recognition,” contending that such closing rules cannot be part of a legal system, and thus not “law.” For the author, they are not rules or norms—but facts. He believes that a legal system is the product of legal doctrine, not some independent reality. He is more sympathetic to Luhmann and Teubner, as their autopoietic theory also sees communication as the most important building block of a legal system. However, autopoiesis, a process of self-organization, whereby a system produces its own structure and maintains and constitutes itself, eventually is a semi-closed system.
The discussion of legal norms in Chapter 5 holds more interesting stock. Starting with Joseph Raz’s ideas that norms can also be reasons for human action, and developing Raz’s distinction between mandatory, permissive, and power-conferring norms, Van Hoecke argues that understanding the relationship between norm-sender and norm-receiver is essential; however, many theories of law fail to take this into consideration. In linguistic as well as other types of communication, a message can hardly be understood, if it is not linked to the communicative relationship between the sender and the receiver. Similarly, with regard to regulation by norms, if the norm-sender wants to ensure that a purpose will be fulfilled, the norm-message must be transmitted adequately to norm-receivers. Van Hoecke’s arguments emphasizing the relationship between norm-sender and norm-receiver not only set the stage for an assessment of communicative action in the context of law-making and law enforcement. Indeed, they also offer a critique of current legal theories that tend to overemphasize the importance of either norm-sender or norm-receiver and thus fail to provide a convincing account of law. The command theory of law, for instance, pays too much attention to a sovereign lawgiver, and legal realism reduces law to the point of view of norm-receivers—neither of which, therefore, has offered a complete understanding of the giver-receiver relationship. Finally, the author’s consideration of rights in this chapter is reminiscent of Hohfeld’s theory of rights.
Chapter 7 covers an enormous terrain relating to legal epistemology and methodology. In this chapter language as a means of communication is linked to legislation as communication; interpretation of statutes is discussed together with legal principles, and the role of the judge and the role of legal doctrine also figure prominently. The author states that each legal argument contains three components: deductive reasoning, inductive reasoning and value thinking. These are the basic elements of legal reasoning, but it also involves more. Legal reasoning is teleological and historically oriented, practical and concretizing, and it is norm-based and an important part of decision-making. But ultimately legal thinking is communicative: it is based on constant communication between and among different actors—lawyers, judges, legislators, parties and administrators—in the legal field. The complexity of legal thinking means that legal methodology is necessarily multifarious, and in order to understand it, scholars must avoid the tendency to reduce legal methodology to a theory of argumentation.
The search for meaning in legal hermeneutics has been an ongoing drama without heroes or villains. Drawing on general theories of language and interpretation, Van Hoecke offers two sets of triangular relationships that are at once interesting and inspiring. One is the triangle of communication—“sender-utterance-receiver”—and the other is the triangle of meaning—“sign-denotated reality-meaning.” The “sign” is the linguistic utterance. The “denotated reality” is the reality to which the sign refers. The “meaning” is the result of the link between both. There is a meaning intended by the sender and a receiver-interpreted meaning. These two models of communication and meaning may be well known by linguists, but in jurisprudence they are relatively new. The implications of the distinction between sender- and receiver-meanings for the scholarship of law are important. Indeed, it is possible that the two meanings may not intersect. In law there could be a gap between the legislative (sender) meaning and the adjudicative (receiver) meaning. The search for meaning therefore should fill in that gap. Both legislators and adjudicators are bound by an obligation to join the two meanings: legislative utterance should be crystal clear, and adjudicators should remain in the orbit of communication initiated by legislators. With these goals in mind, various techniques of interpretation have been advanced, such as grammatical method, systematic method and historical method.
In that connection the role of judges is relevant. Van Hoecke aptly notes that the traditional relationship between the legislators and judges, which is vertical, with judges passively applying laws made by the legislators, has been replaced by a circular one in which legislators have limited control over judges, while judges can exercise judicial review and question the constitutionality of legislation. Moreover, today’s judges are engaged in an ongoing process of making, adapting and developing law. This ultimately leads others to question the legitimacy of judicial decisions: how can we legitimate such judicial decisions that do not have formal or substantive legitimacy? The answer, according to the author, lies in deliberative communication. That is, through the communicative process between parties and judge in which they exchange evidence and arguments, certain judicial truths will emerge. Decisions made by judges without support of formal rules become legitimate after going through a series of communicative spheres—trial court decision, appellate review, publication of the opinion and subsequent consideration as precedent, to discussion in the media, to discussion by society at large. Each of these links is a communicative sphere leading to final legitimation of a judicial decision. The idea of deliberative communication as a legitimating force for judicial decisions apparently has opened up fronts for further deliberation and that is one of the merits of LAW AS COMMUNICATION.
REFERENCES:
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Frank, Jerome. 1949. LAW AND MODERN MIND. New York: Coward-McCann, Inc.
Fuller, Lon. 1964. THE MORALITY OF LAW. New Haven: Yale University Press.
Habermas, Jürgen. 1984. THE THEORY OF COMMUNICATIVE ACTION. Vol. 1: REASON AND RATIONALIZATION OF SOCIETY (trans. T. McCarthy). Boston: MIT Press.
Habermas, Jürgen. 1987. THE THEORY OF COMMUNICATIVE ACTION. Vol. 2: LIFEWORLD AND SYSTEM: A CRITIQUE OF FUNCTIONALIST REASON (trans. T. McCarthy). Boston: MIT Press.
Habermas, Jürgen. 1996. BETWEEN FACTS AND NORMS. CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (trans. William Rehg). Cambridge: Polity Press.
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Hohfeld, Wesley N. 1978. FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING. Westport: Greenwood Press.
Kelsen, Hans. 1967. PURE THEORY OF LAW. (trans. Max Knight) Berkeley and Los Angeles: University of California Press.
Luhmann, Nicklas. 1990. “The Autopoiesis of Social Systems” in Luhmann, ESSAYS ON SELF-REFERENCE. New York: Columbia University Press.
Raz, Joseph. 1990. PRACTICAL REASON AND NORMS. (Second Edition) Princeton: Princeton University Press.
Teubner, Gunther, and Anne Bankowska. 1993. LAW AS AN AUTOPOIETIC SYSTEM (trans. Ruth Adler). Oxford: Blackwell.
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Copyright 2003 by the author, Yu Xingzhong.