3.3.2 Legal Effect
- Working definition
- Examples of how ‘legal effect’ is used
- The meaning of ‘legal effect’ in terms of MoE, affordance and LPbD
The consequence of a legally relevant fact, which consequence is attributed by positive law, and consists of a change in the legal status of a legal subject, including a change in their legal powers, their rights or obligations:
- this can entail e.g. the attribution of a right, the voiding of an obligation, or the qualification of some state or behaviour as either lawful or unlawful;
- the attribution of legal effect is brought about by a legal norm that consists of a set of legal conditions (Tatbestand) that attribute the legal effect if the conditions are fulfilled;
- the attribution is neither caused nor logically inferred; it is performative in the sense of speech act theory;
- for instance, fulfilling the conditions that constitute a criminaloffence have the legal effect of being punishable, not of being punished (which is another matter);
- The set of legal conditions (Tatbestand) that result in a legal effect are specified in positive law, more precisely in a source of law: legislation, case law, customary law, or fundamental principles
- As positive law depends on the relevant jurisdiction, legal effect in turn differs per jurisdiction, even if some legal effects may apply in many jurisdictions
The term ‘legal effect’ is used differently colloquially and in legal scholarship. Colloquially, it can perhaps be taken to broadly refer to the effects of law on society, but in law it has a very specific meaning. A few concrete examples will illustrate its meaning in the legal context:
The legal effect of concluding a valid contract usually consists of the attribution of two legal obligations to perform as stipulated in the contract, and two rights to such performance.
- E.g. If you conclude a contract of sale to buy a car it has the legal effect of an obligation to pay a price for the buyer and an obligation to transfer ownership for the seller; it entails a right to have ownership of the car transferred for the buyer, and a right to be paid the price of the car for the seller.
The legal effect of stealing a car means that one becomes punishable if the legal conditions for theft are found to be fulfilled by an institution with the authority to do so. This means those convicted can receive the punishments as specified for the offence in the positive law of the jurisdiction in question, except where a justification or excuse applies.
Although legal effect is not the be all and end all of what modern law is or does, it could be characterised as its vanishing point and is core to a hermeneutical understanding of the law. It is what separates law from other types of norms and is neither a matter of brute fact nor one of mechanical application.1 Therefore, it is one of the key building blocks of what makes modern law and it is what allows for an architecture that structures society, as it guides human beings in their capacity as legal subjects in navigating our shared institutional world. But to explain the notion of legal effect properly and clearly, it is crucial to locate where the actual ‘effect’ sits in law’s current mode of existence. For this we need to turn to speech act theory, given that ‘the nature of positive law entails the attribution of legal effect when specified legal conditions apply, noting that such legal consequence is the performative effect of a dedicated set of speech acts that have been consolidated in a dynamic corpus of legal texts’.2 Speech acts are those acts that are performed by virtue of being uttered: they do what they say. Such ‘performatives’ or ‘illocutionary speech acts’, as J.L. Austin called them, are not the cause of an act but constitute that act. Performatives can be contrasted with ‘constatives’ or ‘locutionary’ acts that are propositional or descriptive rather than performative.
Speech act performatives are not the cause of an act, but are what constitute it.
Speech acts lay bare how language can do more than just describe our reality, it can also constitute it. Austin himself states at the very beginning of his first William James lecture, a lecture series that came to make up his seminal How to Do Things with Words, that performatives might masquerade as statements of fact, but that they are not. He says in a footnote: ‘Of all people, jurists should be best aware of the true state of affairs. Perhaps some now are. Yet they will succumb to their own timorous fiction, that a statement of ‘the law’ is a statement of fact’.3 That this distinction is of prime relevance to law is also illustrated by the fact that some of the most evocative examples from the literature on speech act theory, e.g. the pronunciation of a marriage (‘I pronounce you married’) are legal in nature. This is what legal effect is at its core: legal effect is attributed to a performative — changing legal powers or the legal status of legal subjects, upon fulfilment of certain conditions that may vary across jurisdictions, e.g. from unmarried to married. Our linguistic interaction creates linguistic artefacts that change our shared institutional world, changes our perception of that world, and changes us in the process.
Law’s current mode of existence properly conceived then consists of a dynamic collection of speech acts.4 As the working definition stated above has demonstrated, a specified legal effect is attributed when certain legal conditions are demonstrably fulfilled, but this is obviously not always straightforward: nearly nothing in law is as simple as an individual invested with legal power uttering a first-person singular statement such as ‘I pronounce you partners’, to which legal effect is attributed that takes immediate effect. Part of the complexity is also owed to the fact that speech act theory was developed in the context of oral speech and not of written text, whereas law has traditionally been text-driven. However, ‘speech’ can be and is used in some of the philosophical literature on speech act theory as including more than just speech in the traditional oral sense. Let us turn to some examples to see how legal effect can be defined as the performative effect of a series of legal acts that qualify as speech acts: a legislature that enacts a rule about the legal effect of concluding contracts, followed by two parties who enter into a contractual agreement to sell and purchase a car. If one of the parties then claims terms of the contract were violated, e.g. because the seller does not hold up his side of the bargain and the car is not in the agreed upon condition or meets the discussed requirements, the injured party then claims in court that the other party has breached the contract in some way or other and is liable to pay compensation, followed by the court deciding the case.5
In each case the legal effect is indeed a performative effect – it has real effects in the make-up and constitution of our legal institutional world. Performative speech acts are thus very closely tied to institutional facts, as opposed to brute facts, and capable of creating our shared institutional world. But whether a speech act has such a performative effect is crucially dependent on a shared background in a pragmatist understanding of the meaning of language. In this context, the Wittgensteinian idea of meaning as use entails that the performative effect is dependent on ‘a shared background consisting of hidden assumptions, mutual beliefs and a joint practice that grounds the use and thereby the meaning of words and more generally of human action’.6
Performative speech acts are thus very closely tied to institutional facts, as opposed to brute facts
Legal effect, viewed in this way therefore consists not just in oral legal speech acts (e.g. pronouncing), but written legal speech acts as well (e.g. enacting). While a written speech act or performative might sound like a contradiction in terms, modern law consists in both unwritten and written performatives. Whereas oral performatives are directly embedded in the context in which they were uttered, written performatives (like most text) endure far beyond the moment of inscription and are thus extended in both time and space. This instantiation in time and space makes context of prime importance and interpretation in light of the context into the hallmark of positive law, which requires keen attention to the tacit background knowledge at stake. It appears that the literature on speech act theory has not focused much so far on either written speech acts or on the contextual information needed for understanding a speech act.7 Perhaps when the direct circumstances in which a speech act is uttered are clear, as is the case for most oral communication, most of the time the contextual information (shared background or tacit knowledge) need not be explicitly specified. However, due to the affordances of written text this needs to be made explicit, especially in law. These affordances account for the complexity of modern positive law and the nature of legal effect that is a necessary condition for law and thus forms the backbone of legal protection. Thereby, legal effect is also instrumental in instituting the countervailing powers of the rule of law.
Legal effect in text-driven law thus offers legal protection ‘by design’ in two senses: first, it straightforwardly offers the protection as stipulated by the legal rule in question. If that law has no legal effect it cannot protect qua law. A fundamental right is protected by way of law, e.g. an anti-discrimination law is enacted and thus has legal effect — in that way law will aid in the protection against discrimination. Second, and crucially for our purposes, that law offers protection by virtue of its very nature as a written legal speech act. As such, it has certain affordances that it has by virtue of its technological embodiment: text. The multi-interpretability of human language — as embodied in technological expressions of script and the printing press — provides an ever-moving target for the settlement of meaning. Meaning is constituted and re-constituted in its use, but instead of collapsing in a relativistic and subjectivist assemblage of ‘private languages’, it stably guides us and provides us with the contestability that is core to the rule of law. Legal effect as attributed by competent authorities and drawn from the sources of law thereby affords us the closure that legal protection by design requires. We cannot assume that this type of legal protection, the type that is provided by the contestability of natural language and safeguarded by the checks and balances instituted by the rule of law, will translate flawlessly to different technological embodiments that law may come to be expressed in. This means reconstituting the countervailing powers pivotal to the rule of law into the architectures of law’s possible new modes of existence by way of legal protection by design.
Ibid at p. 2 ↩
J.L. Austin, How to do Things with Words (The William James Lectures delivered at Harvard University in 1955) (Clarendon Press, 1962) at p. 4. ↩
M. Hildebrandt, ‘A Philosophy of Technology for Computational Law’ in D. Mangan, C. Easton and D. Mac Síthigh, The Philosophical Foundations of Information Technology Law (forthcoming 2021) at p. 6 ↩
Examples drawn from M. Hildebrandt, ‘A Philosophy of Technology for Computational Law’ in D. Mangan, C. Easton and D. Mac Síthigh, The Philosophical Foundations of Information Technology Law (forthcoming 2021) at p. 6 ↩
‘Text-Driven Jurisdiction in Cyberspace’ (n 1) p. 6; see J. Searle, The Construction of Social Reality (The Free Press, 1995) ↩
See e.g. P. Henttonen, Records, Rules and Speech Acts: Archival Principles and Preservation of Speech Acts (Tampere University Press 2007) ↩