[ Pobierz całość w formacie PDF ]
in which the reasonable man is placed. In other words, reasonable-
ness, unlike fairness, is reconceptualised in legal language.
Opinion- and will-formation
In all of these situations the reasonable man is conceived to be a
participant. The law looks to him for a yardstick for reasonableness
in action. But Habermas speaks of both opinion- and will-formation:
only legitimate law emerges from the discursive opinion-and will-
formation of equally enfranchised citizens . So his theory requires
more from the reasonable man than his appearance in law as the
reasonable actor. Concisely, as an ordinary person, say the figurative
man in the Clapham bus, he must share with all other communi-
catively-engaged citizens an understanding of themselves, as a whole,
as rational authors of the law.33 How is the gap that is now revealed
to be filled?
Representation
In order to, at least, shrink the gap, I want now to propose a more
exact description than meaning equivalence for the relationship
between the interpretation of the facts and the application conditions
of the appropriate legal norm. That is, it will be remembered, the
relationship that, according to Habermas, finally decides the issue.
This comes down to what is for me the critical question, the
relationship between legal language and ordinary language. I propose
to adopt the concept of representation to denote the character of
this relationship.
The notion of representation commonly appears inter alia in two
areas that are fairly wide apart. One of these is occupied by the
relationship between the sign and the signified. Semiotics studies
language as one sign-system among other sign-systems. To say that a
word represents its object carries a greater significance than the mere
substitution referred to by the statement Let x represent the number
of oranges or the encipherment of a message in a code. In these
cases, the signs are arbitrary and in themselves meaningless, and the
relationship entirely factitious. To re-present in words is to present
an object in a significantly different way. Presentation , in its
common, contemporary usage as a synonym for style and in oppo-
sition to substance, refers to the art or technique of the seductive
arrangement of words, images or objects. But, as it is understood
168
CONCLUSI ONS
here, representation introduces a second tier involving an additional
layer of meaning.
The conception of representation is able to flesh out the criterion
of meaning equivalence referred to by Habermas. Thus we can say
that the description of the application conditions of the appropriate
norm expressed in legal language should represent the interpretation
of the facts expressed in ordinary language. But this covers only
part, the structural aspect, of what is involved in representation.
Fidelity
That aspect of representation which is important, other than the
structural, is the normative. What is missing or goes wrong when
what purports to be representation turns out instead to be misrep-
resentation? That the answer is fidelity shows up clearly if the focus
is shifted from representation by words or images to the relationship
between a commercial, legal or political representative and his
principal, client or constituent. The lawyer in court, for example,
defines his position thus: I represent X. His duty, then, is to pursue
X s real-world interests with fidelity within the horizon of the legal
world. But does the conception of representation connote fidelity
to the client s instructions or fidelity in the pursuit of the client s
interests? The nature of the complex relationship of representation
depends in turn on the fluid character of instructions and interests.
Interests assert themselves in the determination of objectives while
instructions draw guidelines for the means. Both are presupposed
to be provisional. Both emerge from a dialogue and accommodation
between the real world and the legal system with its distinctive ethics,
culture and language.
In the sense that it takes place at the discursive level, this dialogue
is literally meant. Throughout this book the interplay between
ordinary language and legal language has been on display on the
judge s side in the case studies showing the absorption of fair, just
and reasonable and other flexible words into legal discourse and
the assimilation of concepts of ordinary language by the process of
reconceptualisation. In chapter 3, too, analysis revealed the readiness
of judges in applying the law to supplant or at least supplement
textualism by focusing on what might have been intended to be
conveyed to the law s addressees. It is only against the background
of representation in that sense that the judge can be portrayed as the
citizen s representative and legal language be aimed at the achieve-
ment of meaning equivalence between fact and norm. On the other
169
CONCLUSI ONS
side, as Habermas postulates, a process of opinion- and will-
formation takes place through ordinary discourse based on under-
standing of the law. Thus, the presumption that everyone knows the
law is justified.
Human rights
In this section I want to bring out the radical differences of rights-
based law, especially its use of philosophical language from which
the distinctive characteristics of legal language identified in the
preceding section are missing. The Human Rights Act 1998 may or
may not represent a watershed in British law. Its main impact so far
has been in the sphere identified earlier as procedural justice. But
whether or not the Act will exert a material influence in the direction
of substantive justice remains unclear. The Act domesticates the
rights and freedoms of the European Convention on Human Rights
by the incorporation of the convention into UK law. Rights, freedom
of speech for example, were already part of British law under its
unwritten constitution. Also, the human rights catalogued in the
Convention, which Britain was the first state to ratify, were already
influential, although not decisive, in British law even before the Act s
coming into force. Indeed, for the most part, the convention rights
are still not decisive. Rights have not been given the power to strike
down legislation. Short of that, so far as it is possible to do so,
legislation must be read and given effect in a way which is compatible
with Convention rights (s.3) although if the court is satisfied that a
legislative provision is incompatible with a Convention right, it may
make a declaration of that incompatibility . (s.4)
The origin of the strong impact of rights on procedural justice
can be traced to the conjunction of two competing tendencies. Iron-
ically, the Labour Government initiated one and intensified the other.
In its zeal for constitutional reform it introduced the Human Rights
Act. On the other side, it (over)responded to public concerns about
crime by plans to review evidential rules in criminal trials. These are
designed to save money, speed up the forensic timetable and obtain
more convictions. Inevitably, these aims are incompatible with the
ideal conditions of procedural justice, already outlined. But a more
down to earth consideration is that the measures impact on the newly
incorporated Convention rights. For instance, there is the tension
between the statutory measure eroding the accused s right to silence
and his right to protection against self-incrimination. In general,
many of the rights-based cases arise from claims that convicted
170
CONCLUSI ONS
persons have been denied the right to a fair trial (Article 6 of the
Convention).
CASE STUDY
Expressing its sensitivity to public disquiet concerning the rarity
of rape convictions compared with the number of reported
complaints and, even more, the much higher number of unrep-
orted incidents (based on tip-of-the-iceberg speculation), the
government passed legislation in 1999, whose objective was
to gain more convictions. It provided that reference to a
[ Pobierz całość w formacie PDF ]