Expositive system and legal system in the Communicational Theory of Law

Abstract

In this study I try to explain the characteristics of the legal system, as it is understood in the framework of the Communicational Theory of Law (TCD). The legal system constitutes a textual totality that reflects another textual totality: the legal order. It is not a positivist reflex, by virtue of which the system would be a mere description of the order, but of a hermeneutic reflex, which supposes that the system constructs the order, and presents its better and more finished version, a more intelligent version. The relationship between order and system is not unidirectional, but between them there is a hermeneutic spiral relationship sustained over time, since they are textual totalities in perpetual change. The ordering / system duality represents the basic axis within a juridical realm, a reality that encompasses all the communicational processes and the texts produced by them: first, the communicational processes generated by the ordination and the ordinary texts; second, the communication processes of legal dogmatic, which generates the various proposals of the exhibition system; third, from the conjunction of dogmatic texts and from the jurisprudence of the courts arise the systemic texts or texts of the legal system; fourth, the communicational processes and the texts that are generated within the scope that, however, do not belong to the order or the system; and fifth, the acts (and omissions) whose legal meaning can only be understood from the frame of reference constituted by the hermeneutic axis of order / system. In all this analysis, it is necessary to differentiate - as has been pointed out - between the didactic-expository system and the legal system itself (or legal system in the strict sense). In order to carry out the proposed task, before entering into the distinction between legal order and legal system, it is convenient to deal with the differentiation between set and order.