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 the conclusion of an actual contract generally consists in the attribution of two statutory contractual obligations for performance and two rights to that service. EFFECT.
The effect of a law, agreement or act is called its effect. 2.Under the laws of the United States, a patent cannot be granted solely for an effect, but it can be granted for a new type or application of machines to produce effects. 1 Welsh. 478; see 4 Mason, 1; Domestic animal. C. C. R. 394; 2 N.
H. R. 61. In the plural, a person`s effects are the real and personal property of a person who is deceased or who makes a will. The term “legal effect” is used colloquially and differently in case law. Colloquially, one can perhaps refer extensively to the effects of law on society, but in law it has a very specific meaning. A few concrete examples illustrate its importance in the legal context: the legal effect in the law dictated by the text thus provides legal protection “by design” in two respects: first, it directly provides the protection provided for in the relevant legal provision. 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 will be enacted and will therefore have 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 legal effect thus considered therefore consists not only in oral acts of legal speech (e.g. pronunciation), but also in written legal speech (e.g. staging). 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. This instantiation in time and space makes the context of paramount importance and interpretation in the light of the context the hallmark of positive law, which requires particular attention to the basic knowledge implicit in play.
It appears that the literature on speech act theory has so far focused neither on written speech acts nor on the contextual information necessary to understand a speech act.7 While the direct circumstances in which an act of speech is delivered are clear, as is the case with most oral communications, Contextual information (common context or implicit knowledge) usually does not need to be explicitly specified. However, because of the affordances of the written text, this must be made explicit, especially in the law. These affordances take into account the complexity of modern positive law and the nature of legal effect, which is a necessary condition of the law and thus constitutes the backbone of legal protection. The legal effect is also decisive for the establishment of the powers to balance the rule of law. 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 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 one way or another and is liable for damages, followed by the court deciding the case.5 The acts of speech reveal how language not only describes our reality, but can also constitute it. Austin himself stated at the beginning of his first William James lecture, a series of lectures that culminated in his seminal book How to Do Things with Words, that performatives might disguise themselves as factual assertions, but this was not the case. He says in a footnote: “Of all the people, lawyers should know the real situation best. Maybe there are a few now. Nevertheless, they will succumb to their own frightening fiction that a statement about “the law” is a statement of fact.3 The fact that this distinction is of paramount importance to the law is also demonstrated by the fact that some of the most impressive examples in the literature on the theory of the act of speech, for example the pronunciation of a marriage (“I declare you married”). are of a legal nature. This is what the basic legal effect is: the legal effect is attributed to a performative – change in the legal powers or legal status of legal entities – when certain conditions are met, which may vary depending on the jurisdiction, for example from single to married. Our linguistic interaction creates linguistic artifacts that change our common institutional world, change our perception of that world, and change us in the process. 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 duties: performative speech acts are not the cause of an action, but are what constitutes it.
