On the nature of legal understanding and the quality of transnational communication in law

Abstract

This project is about the fundamental loss of effective legal understanding in conversations between competent jurists from different national legal systems. It consists of three parts. The first argues for a complex, full and effective legal understanding that is embedded within a socially constituted practice of legal language. This means that those who engage in such a practice of language should be able to communicate with each other in more or less agreement, and this includes the possibility of meaningful disagreement, misunderstanding, or mistake. This account is in line with the view of language and meaning, advanced by Ludwig Wittgenstein in his Philosophical Investigations. The second part demonstrates that in certain conversations about law the participants do not share a socially constituted practice of legal language and as a result cannot communicate effectively. At most they can communicate in terms that collapse into an infinite number of interpretations because there is no shared understanding of them. Ultimately this leads to a paradoxical understanding of the conversation that is not full and effective at all. Hence the quality of communication is fundamentally undermined. Three conversations are analyzed to demonstrate this problem: a non-legal conversation about coffee and two legal conversations about contractual interpretation and the interpretation of a European Court decision. The third part concludes that when the quality of communication is fundamentally undermined the participants must work together to create a new, shared practice of legal language. This kind of collective undertaking resembles what James Boyd White has described as a process of integration in his Justice as Translation. Through this process, which is based on the participants’ different understandings of law, a new kind of understanding can be created, one that is both respectful of the original and shared.