Leonardo Soares Matos Cascudo
Everything is language! In view of this, one can think of the infinite human act of interpretation to make sense of everything that surrounds us. This way, we can infer that every interpretative act focused on a particular piece of communication (written, spoken, or gestural) is subject to textual analysis as every other text by performing an analysis of legal text, verifying the inherent language in the message produced by speech, pervading its prescriptive characteristic, and commenting on its other constant possibilities in the legal regulations.
Keywords: Language; Communication; Text; Juridical norm
In the begining of human existence, around 3 million years ago, there was no “I” or “You”, “this” and “that”, the conjugated verbs in its varied forms that we know of today, or even man’s surrounding objects, the world was devoid of logical sense. Time did not move, since it did not even exist, and the same applies to actions, as they did not occur; there was no sense to things, because there was no language. However, be it at that period, be it in our time, we can infer the existence of such objects in the phenomenic world. We do not deny their existence; there are and there were some objects, such as the constants on the periodic table, that did not change during this period. Nevertheless, to the social, to those that were there, that cohabitated and lived without language, everything was perceived through the senses or through living; nothing was, they were lacking in interpretants, words to describe, to speak of and thus to create objects, to create the social world.
Time came into being in the exact moment man communicated “time” as time, describing it and showing it to a social, how much time it has to become time. This was only possible through language. Language constructed a social environment by naming, qualifying, and describing everything that before was not, everything that before lacked in meaning. Language has come to give things a meaning and, through language, man was able to comment on objects and distinguish them from one another. Reality is an interpretation, attributed to the raw information surrounding us and perceived by the senses. Language, no doubt whatsoever, was, and is, man’s greatest creation.
Regarding a language within objects, acts, the world, Plato, on his philosophical theory of consciousness, studied what composed the social and made the world what it is to language. In this philosophical current, Plato, and afterwards Kant, had language as an instrument, used by man to know objects, in which, “knowing” was a relationship between man, faced with those, object, and the language that was used to express the essence of material information the world was composed of. In this philosophical concept of consciousness, man tried to describe through words what the objects were, their essence. For this purpose, truth was seen through correspondence, that is, any assertion was only seen as truth if and only if it corresponded to the object to which it referred to, and to the language generated, sufficed the understanding of the essence of what the object was.
Years after that, more precisely in the beginning of the last century, Ludwig Wittgnenstein, in his work Tractatus logico-philosophicus, dwelled once more on the study of language, not focusing anymore on language as a social instrument, but observed language as the mean through which man constructed and created reality of things in amidst of the social. This new approach did not defend language as a simple instrument to man; it was the own essence of things, and so, language created the world in the moment man named and defined things, providing an interpretant. At this point, truth is no longer a correspondence between language generated and the object to which it refers, it is now linguistic truth, truth as a link between statements produced by man to describe things based on adopted references. In this field, only a linguistic statement could reveal the falseness of another statement produced about an object. The act of knowing the world, as seen, came about through language, where man, who had nothing, started constructing his reality through language.
In this new philosophical concept about language, reality to man is his interpretation of raw information perceived by the senses. Reality is no longer seen as linguistic description of what we perceived by the senses, but it is now the attribution and construction of a value judgement about this raw information. Therefore, phenomenic objects do not appear before language to the social environment but after, together with the act of interpreting and creating them, thus providing an interpretant. Before language, we had nothing but raw information with no logical sense. However, at the moment we named things, differentiated them from other objects, commented on and attributed meaning to them, that was when we created them in the environment. Then we have the linguistic turn, where knowledge is no longer the link between man and the object, where truth is linguistically built in statements.
There are several examples about this where language, as such, changes human reality without necessarily altering the physical environment, with the only need of altering references, of time and space, where man is. As an example, we can cite the cell, which for a long time was known as the smallest particle, and language, based on references, modified this linguistic truth, bringing electrons, protons and neutrons into existence. These, in the phenomenic world, have always existed, but in the social have only come into being at the moment of its construction through language. The sunset, depending on the reference, also changes: when does the Sun set? For some, the answer will be when the eyes can no longer see it on the horizon, while to others the answer is eight minutes before the sun disappear on the horizon. Well, which one is correct? The answer is that it depends on the frame of reference. Both are correct. Since light takes 8 minutes to travel from the sun to Earth, what we see when the sun fades on the horizon is just a trail of light. Based on this reference, the sun has already set eight minutes before. However, by seeing, by taking this other frame reference, it is also reality, and so, linguistically generated truth. There is truth on both cases, depending on the frame of reference, and it is only possible through the language that generates it. Thus, based on the adopted frame of reference, we cannot deny that the sun sets when we see it fading into the horizon or eight minutes before.
Having said that, language creates and builds reality, but not physics, which is not altered through language; we are talking about changing of social reality. Language does not touch its object, does not modify the physical matter, but only creates it socially. Professor Lourival Vilanova brilliantly affirmed that the physical matter is altered through work and effort, but change in the social can only be achieved through language.
In view of this, there is no doubt when one states that idiomatic language is one of the, if not the best, human inventions, because it is through it that we create, build and modify other objects on the human surroundings. Language is a necessary tool for communication, the constant act of man. Without language, there is no communication between subjects, or social interaction between individuals.
In this field, language has a fundamental role for man, because it is the mean through which we communicate socially, and transmit and receive information. Sign language, speaking, objects, among others, transmits a message about something to someone. The object, static, is only an object, it is what it is, because we perceive it through the senses, and from this physical support we build, using language, an interpretant in our mind. Human knowledge is nothing but linguistic interpretations of the world. These interpretations, this knowledge, because of the human essence, needs to be transmitted and received. This transmission, or reception of knowledge, messages, is done through communication.
In this philosophical train of thought of language that professor Paulo de Barros Carvalho e Lourival Vilanova founded the lessons of Logical-semantic Constructivism, based on the philosophical study of language, logically and semantically connecting propositions to define the object of study. We have here that language produced by the knowing subject does not describe the raw state it is presented, but generates it linguistically, in amidst a rigorous process of construction of speech. This act is done by logical and semantic criteria in order to build strong linguistic structures and references that justify the prepositions, giving stability to the message. The view of right in linguistics, then communicational, is the first step to study the subject from a scientific point of view.
2. Communication theory
The communication act is necessary and inherent to man since language was created to describe the social. Since then, man is in an eternal act of communication.
Communication theory, in which Roman Jakobson has decisively contributed to its study, is an act through which, by using linguistic functions, there is an exchange of messages, or transmission of messages between a sender and a receiver. For such, there are six necessary components of communication: (i) sender; (ii) message; (iii) receiver; (iv) context; (v) code; (vi) and channel. In this train of thought, the professor and master Paulo de Barros Carvalho added a seventh component to communication, the psychological link.
As was said: (i) the sender is the subject which sends the message, it is the source of an act of linguistic statement to be received by the receiver; (ii) the message is the result of the act of speech, the statement produced by the sender; (iii) the receiver is the one that receives the message produced; (iv) the context is the medium that surrounds the subjects, the sender and the receiver of the message; (v) the code is the group of signs common to both, in which the message is voiced; (vi) the contact is the physical support to which the message is transmitted, connecting the subjects of the communication, of which the receiver will make use to attribute an interpretant to the content produced; (vii) and the psychological link is the reception of the message by the subjects.
In semiotics, a sign is a connection between a physical support (contact), a meaning and an interpretant. Everything that can represent something to someone. In this aspect, the physical support is everything through which you can obtain meaning, from objects, to gestures and facial expressions. In turn, meaning is the representation of the physical support, which is common to society, whereas the interpretant is the intellectual construction of a concept regarding what was presented, being different to each individual.
If one of the communication components is missing, there will be noise, and so the message will not be transmitted to its receiver. The lack of sender and receiver would result in either no message or no message reception, creating a noise. Moving forward, if subjects are within a different cultural and historical context, the message may not reach its receiver, or will do so in a distorted form, resulting in an unwanted interpretant. The same will happen if, for example, a code used by a sender utilizes the Portuguese language is sent to a receiver who does not speak this language. In both these cases, there will be no communication.
In the context of jurisprudence, we understand this as a communication system, produced by acts of speech, from those (sender) who have the power to formulate the messages directed to members of a society, who in turn are the receivers in a historical and cultural context, limited by time and space, with the objective of prescribing human behaviors.
It could not be any different, since communication is the mean by which society relates to one another. Therefore, the law is the mean by which qualified authorities generate prescribing messages of behavior, guiding its receivers as how they should behave in a social context.
From this, we infer that law is the language transmitted by authorities, through prescribing messages of conduct, directed towards members of society which demands established values to be followed.
Professor Gregorio Robles, the greatest communication theory thinker in the field of law, brilliantly asserts that law is text. In the professors statements, law, being a network of voiced messages, is language. It is revealed as language, its essence is text and its existence, its physical support, is the same as a text. He also exemplifies that every legal order is capable of being written, of being put into words.
We can think of acts from traffic authorities that, by using whistles, transmit a stop order to the vehicle conductor. However, where is the textual factor of this act? Even on these cases, we can see that such act will only have legal significance, or achieve the desired results, the moment the officer voices, through acts of speech and in legal language, the transcription of the event in normative text, relating the occurred legal fact. This is the moment when this fact will become relevant and take effect, according to law. Otherwise, even if the officer insists on using the whistle or if the conductor do not follow the instructions, to law nothing has occurred and so, nothing will come of this event.
When referring to law as language, we refer to its worldly expression, which happens in text form, and, being a legal act, is capable of manifesting itself in text form. This characteristic of law will allow us to analyze it as one would in any other kind of text of this nature in the syntactic, semantic and pragmatic field. In the theory of law, the analysis of this linguistic spectrum is called hermeneutics-analytic theory. In this analysis, Professor Paulo de Barros adds that the law has syntactic homogeneity, because every rule has the same formal structure; semantic heterogeneity, because every rule has contempt with distinctive interpretants; and pragmatic heteregenoity.
Regarding syntactic homogeneity, every normative text is structured and grammatically presented in the same way, the written form. As for the semantic heteregenoity, we advance to the field of interpretants, which is highly subjective because every reading of the prescribing statements may result in a different understanding by various people. Therein lies the controversy regarding statements’ meanings, since the same statement may result in different interpretations over time, depending on the context in which it is analyzed, evidencing different enforcements of it in different moments.
Since the law is a communication system, its prescribing messages need a receiver so that their interpretants are analyzed. Different social, historic, and cultural contexts in which the message is interpreted results in interpretants different from the intended by the sender.
3. Law as language
Law is language. In its communicational system there are receivers of the textual message sent by the sender (lawmaker), who will have access only to its empirical foundations, will construct interpretants from them.
Analyzing its textual factor, professor Gregorio Robles understands that language is the written text, the physical support for interpretation, conveyed by printed idiomatic code. This theory adopted by the professor affirms that everything surrounding us is text only, because one can discourse and construct linguistic statements from them, since everything is capable of transcription. To the the logical semantic constructivist theory, everything is text, as everything is capable of interpretants. Objects that surrounds us are text, from which we construct interpretants without the need of its transcription in written physical supports. As it creates a value judgement in our mind, the object do not need to be written to be considered text, except to the intersubjective communicational act. Well, the act of thinking is to construct language in our mind about something’s understanding. If we think, we do so in our language, and to do so in a way that we can understand, we need to create linguistic statements in our mind.
As text, the law is subject to analysis as every other text, however, although the textual aspect of the communication system is the same to every text, it does not mean the linguistic functions used in the text production are the same to every text. Legal text is different from others, since language provides various linguistic functions, such as descriptive, prescriptive, operative language, and etc. These texts differ, each having its own characteristics, differentiating them from legal text.
Professor Paulo de Barros addressed this issue by classifying linguistic functions in: (i) descriptive; (ii) prescriptive; (iii) expressive of objective situations; (iv) interrogative; (v) operative; (vi) factual; (vii) persuasive; (viii) aphasic; (ix) fabling; (x) and metalinguistic.
(i) Descriptive function (informative, declarative, indicative, denotative, referential) is the one where the sender seeks to inform the receiver by transmitting common or scientific knowledge. In this linguistic function, the statements are dependent on apophantic logical structure of being, always supported by the truthfulness or falsehood of the produced information.
(ii) In the prescriptive linguistic function, the sender of the message utters orders on intersubjective or intrasubjective rules, seeking to implement values and ideals to its receivers. Unlike the descriptive function, this one works under logical deontic structure, ruled by checking its statements as either valid or invalid. In this field of study, prescriptive utterances generated by speech lack assumptions about being true or not. That is because such statements must be stated by people capable of such, thus validating if the orders are valid or not. It is in this field that legal language operates.
(iii) Expressive language of objective situations is the one where the sender conveys a state of mind or his feelings to the receiver. In this linguistic function, classic logical analysis is not used. In this linguistic function, criteria of truth or untruth, valid or invalid, or even relevance, is not verified, because it lies within the innermost of the sender, thus making such kind of analysis not possible.
(iv) Interrogative language is the one pertinent to questions, in which the sender seeks an answer about something, someone or a situation. In this function, classic logical analysis is not used, because simply knowing if the questions are relevant or irrelevant is enough.
(v) Operative language is the one in which an action is materialized through its own generated speech. In this heavily used function in law, when an authority enacts an action, we see that language functions as a gesture. Professor Paulo de Barros brings an example where a justice of the peace utters a statement declaring two parties husband and wife. In this case, language itself declares nothing, but vows a wedding, becoming itself the action.
(vi) In the factual language, the sender transmits either an introduction, a continuation or the end to a communication act. In this function, pragmatics of speech, that is, language analysis under a communication context where it lies is of fundamental importance to a clear understanding. So, a “hello” or “how do you go”, does not actually request the receiver’s state of being, but rather just starts a communication; it is a greeting. In a telephone conversation in which one wants to know if the person on the other end is listening, we speak messages such as “ok”, “right”, but in the sense of knowing if everything is ok or right, the goal is to know if the message is being received.
(vii) The language we call persuasive is the one that seeks to convince someone about the transmitted message. In this language, the sender seeks to persuade or convince the receiver of his ideas all the time. In this field, languege was regarded as “proper”, since every speech produced is intended to persuade, or the message would be grasped. However, in this function every message has a predominantly persuasive feature, whose goal is to convince the receiver, make him change his understanding to the one the sender believes is more suitable.
(viii) Aphasic language is the linguisctic function of blurring the understanding of others about a produced message. This linguistic function is defined by being a communication act which seeks to be noise from another speech. We can see that the message in the aphasic communication seeks only to confuse the understanding of another message.
(ix) Fabling language is the linguistic function characterized by fables, stories or anything that is fictional, that is not real. The message produced in this function does lie within the analysis of truth or untruth, valid or invalid, relevant or irrelevant. It needs only to make sense in a way of obtaining an interpretant. In the stories, one does seek to persuade or create a judgment of value from the statements. This kind of language can have truth or untruth in its speech, but that would be irrelevant to its goal. In reality, a story can contain truth in its text, but will always be predominantly fictitious within its own context, distancing itself from reality. Otherwise, it would be a descriptive text.
(x) Metalinguistic function is the most carefully executed. This linguistic function’s role is to explain something on its own speech. When I refer to it being carefully executed, it is its own metalanguage. While the metalinguistic function acts within its own speech by using expressions such as “therefore”, “namely”, “in this way” to better explain its own aforementioned speech, metalinguistic is itself another speech. In the latter, an incidental language analyzes another piece of speech. This happens with legal doctrine, positive law’s metalinguistics.
To jurisprudence, mainly descriptive and prescriptive language is dealt with, as if other functions, such as the aforementioned ones, did not exist. That is because the word “law”, as many others, is ambiguous, and can refer both to legal text or legal doctrine. Being the former of prescriptive nature, and the latter of descriptive nature.
In the analysis of positive law’s linguistic function we can find the principle of pragmatic priority to which every text is subjected to. From this principle, as was put by professor Gregorio Robles, we understand that the function to which the text was generated for is what determines its linguistic function. In this case, a historical book will have all the descriptive elements familiar of this kind of speech. A tv series will have the characteristics of and function as fabling language. We cannot infer that a children’s book, identified by its fabling language, will also have prescriptive ou historical language. We cannot take as prescriptive a passage in a history book where a commander orders his soldiers in a certain war. Even though it is an order, the textual reference will show that the speech is only describing one of the commander’s actions, and does not prescribe an order to be followed by the message’s receiver. Historical text does not prescribe an order to its receiver.
Law’s language is identified by its prescribing function. Such linguistic function in law is characterized by the message sender’s intentions of ordering its receivers. That is because of the will of the normative message’s sender is to regulate the receiver’s behavior. In this field, we can see that the sender is not worried about telling stories or describing, no matter which rules are produced by him, nor is he worried about describing the state or marriage in a passage of legal text.
With the principle of pragmatic priority, we can solve some issues of normative order. When the legislator articulates, and this statements deals with not with the sender’s conduct but with descriptions, such as how a state should be organized, or how some legal text should be interpreted, or what is marriage, we are not faced with descriptive text, but prescriptive. Such text imposes how society should understand such terms, or how it should see the government, or how marriage should be performed.
Legal doctrine, however, uses descriptive language. Jurisprudence, or legal doctrine, takes positive law as its object of study, and comments and describes it. This language is identified by text that seeks to inform about the object of study. Notice that in this kind of text, the message is not an order, nor does it prescribe any conduct to be followed by the receivers, as it happens with positive law, its object language. As this kind of message takes normative text as its object, it does not alter it, only describes it.
In these two kinds of linguistics, we can find the theoretical difference between norm and the natural scientific law. The norm’s language is within a “must-be” context, while the natural scientific language is within the “be” context. This means that juridical norm is found as deontic and logic modality, intended to regulate behavior, while the natural scientific one is within the alethic logic, the logic of being, describing an occurrence.
The description of being seeks to report on the physical world’s occurrences, acts or objects, although without modifying it. Normative language, however, does not intend on describing the social, but on establishing what must happen and how social acts show be through rules, implementing values to society.
In the field of deontic logic, normative propositions are organized in the form of “if H, it must be C”, where “if” and “must be” are logical constants, while “H” and “C” are logical variables, hypothesis and consequence, respectively. In this formula, “H” refers to a normatively predicted hypothesis of a possible fact, while “C” refers to the normative consequence of that hypothesis. In this case, given the description of a fact X, consequence Z must be applied. At the same time, alethic logic is structured as “S is P”, where “S” and “P” are logical variables which represent the subject (S) and the predicate (P), and “is” refers to the logical cosntant.
Science is always seeking to describe phenomenic events or, in the case of the science of law, to describe normative text. Juridical norm, however, regulates and modifies and intersubjective conduct. Here we find the critical distinction between descriptive and prescriptive language, as the former expresses the being, while the latter expresses the must be.
4. Juridical norm
In this analysis of law as language, there is a vital and frequent question in law schools: “What is law?”. One answers as the group of rules of law which is valid in a system. Here lies the importance of studying the juridical norm, since it is in the definition of law.
Every normative text is made of prescriptive utterances derived from acts of speech (utterance), which are raw data to the construction of a judgement of value. The interpretant of this judgement of value obtained from reading the prescriptive utterances is the juridical norm. In jurisprudence, juridical norm is an expression which can raise doubts on the reader’s mind, since there is more than one possible understanding, making it ambiguous, resulting in meaning variations depending on its use or its context.
Plurivocity is an inherent attribute of words, but it cannot be part of a scientific speech so as to avoid having an adverse understanding from the intended. This is the field in which the logic semantic constructivism acts, securing the terms on language, giving it clarity and certainty, with no margin to interpretations other than the ones intended by the sender. This is why Paulo de Barros defined the juridical norm in the strict sense and in the broad sense.
4.1 Juridical norm in the broad sense
Juridical norm in the broad sense, as is also said by Gregorio Robles, refers to interpretants, the judgement of value obtained from reading prescriptive utterances. As was said, when one produces a prescriptive utterance through acts of speech (utterance), the qualified authority inserts rules in the legal text that are to be obeyed but its receivers who, by reading them, obtain a judgement of value. As units of a system, prescriptive utterances composes the expression plane of meaning creation, called by professor Paulo de Barros as “S1”. After this initial contact with statements in the expression plane, the exegete constructs the juridical norm in the broad sense, thus providing an interpretant. juridical norm is the mental result of interpretant creation from prescriptive utterances, which composes the “S2” plane.
When considering this norms alone, there are no legal consequences, because they lack a complete deontic meaning. Juridical norm is not what was created by the agent who produced the acts of speech, but the interpretant constructed by the receiver subject.
4.2 Juridical norm in the strict sense
As defined by professor Lourival Vilanova and Professor Paulo de Barros, juridical norm in the strict sense is a syntactic grammatical and logical structure of the interpretant created by the normative message’s receiver, which composes the meaning creation plane “S3”. Based on the reading of two or more prescriptive utterances structured in logical order, and with a propositional judgment and consequence hypothesis, is when we get to the juridical norm in the strict sense, structured in a complete deontic modality.
It is a logical construction made by the subject receiver of the message. From this we formulate a standard norm of incidence, or matrix rule of incidence, or even the name given by professor Lourival Vilanova, “deontic irreducible minimum”, because it is the minimum structure needed for the norm to be applied in social conduct. Juridical norm is then logically structured in neutral deontic modallity, referring to general and abstract norm. Juridical norm will be applied to a fact if, and only if, all its criteria is fulfilled.
In other words, juridical norm in the strict sense is the irreducible minimum of deontic, understood as a logically organized structure by the normative statement’s interpreter, by identifying criteria which, when perfectly fitting with the speech and through adequate procedure, will insert individual and factual juridical norm in the system, by a qualified authority with respective legal obligation.
This logical formulation, in neutral deontic modality (general and abstract), is structured by a normative cause (described, supposed, hypothesis) which describes a legally relevant event. In the cause, in general and abstract norm, there will be the prediction for an event, always of possible occurrence in the phenomic world, composed by a verb in the infinitive with its respective complement, delimited by space and time.
In this field, as the juridical norm works, the qualified authority must describe facts that respects, through class inclusion, the previously lawfully described criteria in the cause of general and abstract norm.
The normative consequence, in neutral deontic modality, is in its turn the prediction established between the subjects of a legal relationship. In it, a subject’s conduct to follow front of another subject is established, if the previously described hypothetical fact does happen.
When an event occurs within the criteria established in general and abstract norm, the qualified authority will introduce a new individual and factual norm to the system through speech. In the individual and factual norm, which is in deontic modal form (mandatory, allowed and forbidden), we find in the cause a description of a legal fact, containing among its elements a committed action in certain space and time coordinates. And so, the relationship subject’s required conduct.
After all which has been said so far, we can assert that the juridical norm in the strict sense, composed by several logically organized rules of law in the broad sense, is the logical signification of the group of interpretants. The mental process of obtaining an interpretant is infinite to the receiver, because everything presented to him through language, text or not, needs the process of creating an interpretant about the object. To take a group of prescriptive utterances, obtain its interpretants, and organize them logically so that another interpretant is attributed to it, is to build a minimum incidence normative sense, establishing criteria so that the norm is effective, and may regulate intersubjective human behavior.
5. Legal language analysis
After all discussed so far, there is no doubt that law is text, since it is presented to us as text, it has textual form, and in order for it to be accepted in the legal world, text must be used. Also, we assert that the statement’s produced have prescriptive characteristics, and reaffirm that this characteristic is present because it represents the sender’s intentions of always regulating the receiver’s conduct. But as all text, law is liable for a more critical, or more thorough, analysis.
Every intended communication within a communicational context has as its initial purpose to inform something to someone. This is the could not be any different with regards to legal text. When an authority produces a new rule destined to certain receivers in a social context, this message firstly seeks to inform the prescriptive normative content of the message.
This is not a unique characteristic of one text, or one kind of text. Every produced language, be it historical, fabling, etc, seeks to inform something to someone, even if it is past occurrences, the case of historical language, or to inform the factual plot of fabling text.
Now we can infer that legal text, besides prescribing, also informs that which is being prescribed. This is because the produced language’s predominant characteristic does not extinguish language functions. Professor Gregorio Robles informs us of the impossibility of a unique language function, since it would be the same as reducing text’s linguistic heterogeneity. To talk about a language’s pragmatic priority principle is not the same as affirming there is one, and only one, kind of language for each text. It only means that text must be understood according to the intended function. In the case of law, as analysed, there is a conduct’s linguistic prescriptive function, since the sender’s intention is to assert the rules regarding intersubjective conduct.
At this point, however, it is possible to identify the informative characteristics of legal text as a communication system. In legal text, the asserted rules informs what it enforces even before it does so. Prior to obeying a determined conduct, one must be inform of such conduct; the informative function does not exclude the prescriptive function that is typical of this kind of text.
The legal text, composed by juridical norms, is also liable to linguistic analysis on its logical structure. In the strict sense, which is done through the construction of a hypothetical-conditional judgement in deontic modal, we can notice there is the descriptive function, in regards to the prescriptive function of legal relation. That is because thecause, or what can be called legal fact in the strict sense, describes a lawfully relevant event, while in the consequence, or relational legal fact, there a the binding of a relation between subjects and an object.
Here, the cause has a descriptive linguistic function, while the consequent has a prescriptive linguistic function. By examining only the causal or only the normative consequent, it would be like trying to divide the indivisible, since one does not bear a complete deontic function without the other. But in order to textually analyze it, composing and decomposing the norm, we can infer that, in the individual and factual norm created by a qualified authority, will always have a cause, stated in a descriptive linguistic function of an event, and, in the consequent, a prescriptive linguistic function of conduct between subjects. For a norm to have coercivity and avoid abstraction and generality, it must enter the system through language in factual and individual norm, which in turn will always describe a fact and prescribe a conduct. In this points one can see the linguistic functions of the norm. Both in the general and abstract, individual and factual, norm there are descriptive linguistic functions in the cause, and prescriptive linguistic function in the consequence. The difference is that in the general and abstract one, the event’s description is abstract because it has not yet occurred, having in its core an infinitive verb. And in the consequence, there is the prescription of a conduct to be followed by general subjects in society. In contrast, in the individual and factual one, the event’s description has in its core a verb in the past, set in determined time and space coordinates. There is a hypothetical fact, and in the consequence, there is the individualization of subjects, as well as the conduct to be followed.
Now one can see that, within the construction of the juridical norm in the strict sense, there is both a declarative and prescribing linguistic function.
Everything is language. The objects that surround us, the actions we practice, the moments we live, what we see, what we hear, what we feel… everything is language. In a more constructivist point of view, language is everything which, in order to obtain an understanding, is within mental representation. It is every reality subject to interpretation. In this way, language can be perceived in different kinds of language, written, spoken, gestual. Language is not only about written text, because everything one can comment on, thus creating an interpretant, is text. The interpretative work of the various text is infinite, because understandings regarding text is always being created to give things a meaning.
It is noticeable that, whether through hermeneutical analytical theory of text analysis or logical semantic constructivism, the textual factor of law allows for an analysis, constructing and deconstructing legal text, so that a more serious analysis can be done regarding its linguistic function. In this point, law as text assumes one must read to understand. This is how textual and communicational factors of law converge into a more thorough analysis about: the message’s sender with his acts of speech; the channel through which the message transits; the receiver; the code; the psychological connection; and the context. From these analysis we can establish questions such as: origins of law; validity, effectiviness and lifetime; norms and norm origins; among others.
Every message one intends on transmitting needs to be decoded, obtaining meaning. Produced statement’s prescriptive function of language comes from the analysis of the sender’s normative, which in turn seeks to express an order to be followed by the receivers.
But is noticeable that in a communicational system, the message’s receiver constructs an interpretant in his mind to the message. This interpretant is called juridical norm in the broad sense, and it is full of incomplete prescriptive value, because it lacks in both cause and consequence implicational judgement connecting a fact to its consequence. Juridical norm in the strict sense, however, is logically organized in a complete deontic modal, “if H, it must be C”. If an event happens as described by a lawfully relevant cause, it will originate a respective consequence in prescriptive language. Also, every text has an informative function of that which it states, be it in the prescriptive or descriptive.
BECKER, Alfredo Augusto. Teoria Geral do Direito Tributário, 6 ed., São Paulo: Noeses, 2013
CARAVALHO, Aurora Tomazini. Curso de Teoria Geral do Direito: O Constructivismo Lógico Semântico, 4 ed., São Paulo: Noeses, 2014
CARVALHO, Paulo de Barros. Direito Tributário Linguagem e Método, 4 ed., São Paulo: Noeses, 2011
CARVALHO, Paulo de Barros. Direito Tributário: Fundamentos Jurídicos da Incidência, 9 ed., São Paulo: Saraiva, 2014
KELSEN, Hans. Teoria Pura do Direito, trad. João Baptista Machado, São Paulo: Martins Fontes, 2014
ROBLES MORCHON, Gregorio. O direito como texto: Quatro estudos de Teoria Comunicacional do Direito, trad. Roberto Barbosa Alves, São Paulo: Manole, 2005
VILANOVA, Lourival. As estruturas lógicas e o sistema do direito positivo. 4 ed., São Paulo: Neoses, 2010
VILANOVA, Lourival. Escritos jurídicos e filosóficos. São Paulo, Axis Mundi/IBET. Dialética, 1997
VILANOVA, Lourival. As estruturas lógicas e o sistema do direito positivo. 4 ed., São Paulo: Neoses, 2010, p. 4
CARVALHO, Paulo de Barros. Direito Tributário Linguagem e Método, 4 ed., São Paulo: Noeses, 2011, p. 166-167
ROBLES MORCHON, Gregorio. O direito como texto: Quatro estudos de Teoria Comunicacional do Direito, trad. Roberto Barbosa Alves, São Paulo: Manole, 2005, p. 21
CARVALHO, Paulo de Barros. Direito Tributário: Fundamentos Jurídicos da Incidência, 9 ed., São Paulo: Saraiva, 2014, p. 31
ROBLES MORCHON, Gregorio. O direito como texto: Quatro estudos de Teoria Comunicacional do Direito, trad. Roberto Barbosa Alves, São Paulo: Manole, 2005, p. 21
CARVALHO, Paulo de Barros. Direito Tributário Linguagem e Método, 4 ed., São Paulo: Noeses, 2011, p. 37-52
ROBLES MORCHON, Gregorio. O direito como texto: Quatro estudos de Teoria Comunicacional do Direito, trad. Roberto Barbosa Alves, São Paulo: Manole, 2005, p. 31
“é uma estrutura lógica. Estrutura sintático-gramatical é a sentença ou oração, modo expressional frástico (de frase) da síntese conceptual que é a norma. A norma não é a moralidade ou a escritura da linguagem, nem é o ato-de-querer ou pensar ocorrente no sujeito eminente da norma, ou no sujeito receptor da norma, nem é, tampouco, a situação objetiva que ela denota. A norma jurídica é a estrutura lógico-sintática designificação...” (VILANOVA, Lourival. Escritos jurídicos e filosóficos. São Paulo, Axis Mundi/ IBET. Dialética, 1997, cit. p.208)
ROBLES MORCHON, Gregorio. O direito como texto: Quatro estudos de Teoria Comunicacional do Direito, trad. Roberto Barbosa Alves, São Paulo: Manole, 2005, p. 83
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