Legislation, Communication, and Authority: How to Account for the Bindingness of Law

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Abstract

In contemporary legislation theory, legislation is approached from roughly two different models: law as symbol vs. law as instrument. Each model offers its own specific perspective from which in concrete cases legislation can be described and evaluated. In the Law As Symbol (LAS) model legislation is seen as an ongoing communicative and interactive process in which various actors in society—the legislator, officials and citizens—work together on an equal level to create and implement legislation. In the Law As Instrument (LAI) model legislation is conceived, on the other hand, as a command that is issued by the legislature, from a position above or outside society, in order to achieve a specific policy goal. In this chapter I explore, building on these two models, how we can account for the bind- ingness of law. How to explain or justify the general expectation that legal norms are, or have to be, respected? As I argue, these models are not mutually exclusive but are co-dependent on each other. For law to function as a command (according to the LAI model), the legislature has to succeed in communicating its message to society. Conversely, to become a convincing symbol (within the LAS model), the law cannot remain a matter of discussion forever; the process of communication and interaction has to stop at some point and the law has to be applied unilaterally and enforced in case of non-compliance. Moreover, I intend to demonstrate that both models have difficulties in explaining law’s authority. How can a command or com- munication in itself generate legal duties? What is missing in both models, in my view, is a reflexion on the role ideology plays within the law. Before one can give commands to citizens (in the LAI model) or enter into meaningful conversations with them (in the LAS model), the existing order has to be accepted as a legitimate legal order. In other words, law has to presuppose its own authority but cannot pro- duce it—only ideology can.
Original languageEnglish
Title of host publicationConceptions and Misconceptions of Legislation
EditorsA. Daniel Oliver-Lalana
PublisherSpringer
Chapter4
Pages81-106
Number of pages26
ISBN (Electronic)9783030120689
ISBN (Print)9783030120672, 9783030120702
DOIs
Publication statusPublished - 2019

Publication series

NameLegisprudence Library: Studies on the Theory and Practice of Legislation
PublisherSpringer
Volume5
ISSN (Print)2213-2813
ISSN (Electronic)2213-2856

Keywords

  • Symbolic legislation
  • authority
  • Instrumentalism
  • Ideology
  • Validity
  • Reciprocity
  • Political methodology

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