7 décembre 2022

What Does It Mean to Have Legal Effect

Posted by under: Non classé .

While the legal effect is not the panacea for what modern law is or does, it could be characterized as its vanishing point and is at the heart of a hermeneutic understanding of law. This is what distinguishes law from other types of norms and is neither a question of raw fact nor a question of mechanical application.1 Therefore, it is one of the most important building blocks of what constitutes modern law, and it is what makes possible an architecture that structures society, since it guides people. as legal subjects, in our common institutional world. But to properly and clearly explain the notion of legal effect, it is crucial to situate where the real « effect » lies in the current mode of existence of the law. To do this, we must turn to the theory of the act of speech, because « the nature of positive law implies the granting of legal effect when certain legal conditions apply, bearing in mind that such a legal consequence is the performative effect of a dedicated series of acts of speech consolidated in a dynamic corpus of legal texts ».2 Speech acts are acts that are performed on the basis of their enunciation: They do what they say. Such acts of « performative » or « illocutionary » discourse, as J.L. Austin called them, are not the cause of action, but represent that action. Performative acts can be compared to « constative » or « locusionary » acts, which are propositional or descriptive rather than performative. The legal effect of car theft means that a person becomes liable to prosecution if the legal requirements for theft are met by an institution empowered to do so.

This means that convicted persons may receive the penalties provided for by the substantive law of the court concerned for the offence, unless justified or excused. The performatives of speech act are not the cause of an action, but are what constitutes it. Legal effect in text-dictated law thus provides legal protection « by design of technology » in two respects: first, it simply provides the protection provided by the legislation in question. If this law has no legal effect, it cannot be protected by law. A fundamental right is protected by law, for example an anti-discrimination law is enacted and therefore has legal effect – in this way, the law will contribute to protection against discrimination. Second, and crucially for our purposes, this legislation provides protection by its very nature as a written act. As such, it has certain affordances that it has because of its technological embodiment: text. The multi-interpretability of human language – embodied in the technological expressions of writing and printing – provides an ever-moving target for clarifying meaning. Meaning is constituted and reconstituted in its use, but instead of collapsing into a relativistic and subjectivist collection of « private languages », it guides us stably and gives us the contestability that is at the heart of the rule of law. The legal effect, as conferred by the competent authorities and drawn from the sources of law, thus gives us the closure required by legal protection by technological design. We cannot assume that this kind of legal protection, guaranteed by the contestability of natural language and guaranteed by the separation of powers established by the rule of law, can be perfectly transferred to various technological incarnations in which law can be expressed.

This means that the compensatory powers decisive for the rule of law must be referred to the possible new forms of existence of the law by means of legal protection through legal protection. The consequence of a legally relevant fact attributed by positive law is a change in the legal status of a legal person, including a change in its legal powers, rights or obligations: the legal effect of the conclusion of a valid contract usually consists in the attribution of two statutory obligations of performance provided for in the contract and two rights to such performance. EFFECT. The effect of a law, agreement or act is called its effect. 2. Under U.S. law, a patent may be granted for only one purpose, but a new type or application of machinery may produce effects. 1 Welsh.

478; see 4 Mason, 1; Domestic animal. C. C. R. 394; 2 N. H. R. 61.

In any case, the legal effect is indeed a performative effect – it has real implications for the composition and constitution of our legal institutional world. Acts of performative discourse are therefore very closely linked to institutional facts, as opposed to raw facts, and are capable of creating our common institutional world. Whether an act of speech has such a performative effect, however, crucially depends on a common context in a pragmatic understanding of the meaning of language. Wittgenstein`s idea of meaning as usage implies in this context that the performative effect depends on « a common background consisting of hidden assumptions, mutual beliefs and a common practice that justifies the use and therefore the meaning of words and, more generally, human action ».6 The term « legal effect » is used colloquially and differently in jurisprudence. Colloquially, one can perhaps refer extensively to the effects of law on society, but in law it has a very specific meaning. Some concrete examples illustrate its meaning in the legal context: As a verb, to do; produce; to do; to achieve this; be executed; apply; accomplish. As a name, the one generated by an agent or cause; Result; Result; Consequence. The result that a document produces between the parties in their relative rights or that produces a law on the basis of the existing law, as shown by the language, forms or other materials used to interpret it. The application of a law, agreement or act. The phrases come into force, are in force and enter into force, are used synonymously. The current mode of existence of the law, which is then properly conceived, consists of a dynamic set of acts of speech.4 As the above-mentioned working definition has shown, a certain legal effect is attributed when certain legal conditions are manifestly met, but this is obviously not always easy: almost nothing in the law is as simple as an individual with legal power. pronounces a statement in the first person singular such as « I pronounce you partners ».

is attributed to the legal effect, which takes effect immediately. Part of the complexity is also due to the fact that speech act theory was developed in the context of oral speech rather than the written text, whereas the law was traditionally text-oriented. However, « language » can and is used in some of the philosophical literature on speech act theory to encompass more than language in the traditional oral sense. Let`s move on to some examples to see how the legal effect can be defined as the performative effect of a series of acts that are considered acts of speech: a legislator enacting a rule on the legal effect of entering into contracts, followed by two parties entering into a contractual agreement on the sale and purchase of a car. If one of the parties then claims that the contractual conditions have been violated, for example: Since the seller does not comply with his part of the transaction and the car is not in the agreed condition or does not meet the requirements discussed, then the aggrieved party claims in court that the other party has violated the contract in any way and is liable for damages, followed by the court deciding the case.5 In the plural, a person`s effects are the real and personal property of a person, who is deceased or who is making a will. The legal effect thus considered therefore consists not only in acts of oral legal discourse (e.g. declaration), but also in written acts of legal discourse (e.g. decrees). While an act of written or performative discourse may seem a contradiction in terms, modern law consists of both unwritten and written performatives. While oral performatives are directly integrated into the context in which they were pronounced, written performatives (like most texts) survive well beyond the moment of inscription and are therefore developed in time and space.

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