Facts and Rules: Incidence of the Social Environment in the Understanding and Elaboration of Law, from the Communicational Theory of Law

Abstract

AbstractThe Communicational Theory of Law (CTL) usually differentiates between Legal Sociology and Legal Theory, in the sense that Legal Sociology is concerned with the social validity of the rules and Legal Theory with the formal or legal validity of the rules. It can be argued that both disciplines are two different perspectives of the same empirical reality (legal rules). Also, legal System and social milieu are two closely linked realities; they cannot be separated because they need each other. The Law is the form or order that the social milieu takes, and, at the same time, the social environment provides the ideas, collective representations and other matters that need a legal regulation. For this reason, the epistemological separation between Sociology and Legal Theory must be overcome when the theoretical perspective comes to legal decisions. Thus, the decisional moment becomes the meeting point between the legal System and the social milieu. This is where the concept of the legal System fulfils its main function, as it allows for the dynamism and adaptability of the legal order. The hermeneutic re-elaboration of the normative texts will be the channel through which the social facts and other material elements can inform the meaning or possible interpretations of the rules and institutions of the legal order. This happens primarily by influencing theoretical and doctrinal works of an expository and didactic nature; and secondarily by influencing the decisions of legal operators and courts. This study seeks to explain how the social context influences legal decisions and the formation of the legal System, from a communicational perspective of Law. In order to do so, it will be necessary to set out two epistemological premises of CTL: the semiotic tripartition of the Theory of Law and the legal Order-legal System distinction.