File #2687: "2019_Book_TheJuridicalAct.pdf"
Text
1|Dedication|6
1|Contents|7
1|Chapter 1: Introduction and Method|10
2|1.1 Introduction|10
2|1.2 Concepts in Law|12
3|1.2.1 Legal Concepts|13
2|1.3 A Working Knowledge of the Theoretical Concept|16
2|1.4 Method: Exchange Between Theory and Practice|16
2|1.5 Two Theoretical Stepping Stones|17
3|1.5.1 Institutional Theories of Law|18
4|1.5.1.1 Legal Constructivism; The Law as a Discursive Practice|19
4|1.5.1.2 Law as Institutional Fact|19
4|1.5.1.3 The World of Law|24
3|1.5.2 Speech Act Theory|25
2|1.6 The Theoretical Concept of a Juridical Act|27
2|1.7 The Value of a Theoretical Concept of a Juridical Act|30
3|1.7.1 The Value of a Theoretical Concept in General|30
3|1.7.2 The Value of a Theoretical Concept of a Juridical Act|31
3|1.7.3 The Value of the Creation of This Theoretical Concept of a Juridical Act|32
2|References|33
1|Chapter 2: The Delineation of the Theoretical Concept of a Juridical Act|36
2|2.1 Introduction|36
2|2.2 Delineation|36
3|2.2.1 The Type of Juridical Act Needs to Exist|37
3|2.2.2 Competence|40
4|2.2.2.1 Practical Power|42
4|2.2.2.2 Competence|44
3|2.2.3 A Juridical Act Is a Constitutive Speech Act|50
4|2.2.3.1 Austin on Speech Acts|50
4|2.2.3.2 Searle on Speech Acts|53
4|2.2.3.3 Constitutives|57
4|2.2.3.4 The Act Needs to Have a World-to-Word Direction of Fit|61
4|2.2.3.5 The Act Needs to Have a Propositional Content|62
3|2.2.4 The Juridical Act Is Not Defined by Its Consequences|62
2|2.3 The Delineation of the Theoretical Concept of a Juridical Act|64
2|References|65
1|Chapter 3: The Juridical Act as a Speech Act in the World of Law|67
2|3.1 Introduction|67
3|3.1.1 The Process of Performing a Juridical Act|67
3|3.1.2 Nullities|70
3|3.1.3 Upcoming Issues|71
2|3.2 The Function of Rules in the World of Law|71
3|3.2.1 MacCormick on Law as Institutional Facts|71
3|3.2.2 Counts-as Rules|73
3|3.2.3 Attached-to Rules|75
3|3.2.4 Leads-to Rules|76
2|3.3 The Speech Act Can Count as a Juridical Act|78
3|3.3.1 Counts-as Rules|79
3|3.3.2 Counts-as Rules and How-to Rules|80
3|3.3.3 Non-existence|82
2|3.4 The Juridical Act Can Lead to Primary Legal Consequences|83
3|3.4.1 Illocutionary Force, Propositional Content and the Primary Legal Consequences of the Juridical Act|84
4|3.4.1.1 Option 1: Both the Illocutionary Force and the Propositional Content Determine the Primary Legal Consequences and the Illocutionary Force Is Functionally Represented in the Primary Legal Consequences|85
4|3.4.1.2 Option 3: The Primary Legal Consequences Are Based Solely on the Propositional Content. The Normativity of the Primary Legal Consequences, If Present, Is a Part of the Propositional Content|87
4|3.4.1.3 Option 2: Both the Illocutionary Force and the Propositional Content form the Primary Legal Consequences. The Illocutionary Force Is Not Functionally Represented in the Primary Legal Consequences But Merely Forms the Basis for the Normativity|89
4|3.4.1.4 Advantages and Complications|90
4|3.4.1.5 Conclusion|98
3|3.4.2 Interpretation of the Juridical Act|99
4|3.4.2.1 Legal Interpretation Rules|99
4|3.4.2.2 Interpretation of a Juridical Act|101
3|3.4.3 Leads-to Rules|102
4|3.4.3.1 The Primary Legal Consequences Inherently Imply the Existence|105
4|3.4.3.2 A Rule Gives Legal Effect to the Content of the Primary Legal Consequences|108
4|3.4.3.3 The Primary Legal Consequences Inherently Imply the Existence|111
4|3.4.3.4 Laws and the Gap Between Is and Ought|111
4|3.4.3.5 Leads-to Rules|113
2|3.5 The Juridical Act Does Not Lead to (All) Legal Consequences|114
3|3.5.1 Can There Be a Juridical Act Without Legal Consequences?|114
4|3.5.1.1 Juridical Acts as Acts That Are Defined by Their Consequences|115
4|3.5.1.2 Juridical Acts as Acts That Are Not Defined by Their Consequences|115
4|3.5.1.3 The Juridical Act Should Not Be Defined by Its Legal Consequences|115
3|3.5.2 The Juridical Act Has No Legal Consequences|118
4|3.5.2.1 Option 1: The Leads-to Rule Does Not Lead to Legal Consequences|119
4|3.5.2.2 Option 2: The Legal Consequences Are Subject to Two Different Rules|121
4|3.5.2.3 The Argument in Favour of Option 2|123
2|3.6 Secondary Legal Consequences|123
3|3.6.1 The Difference Between Primary Legal Consequences and Secondary Legal Consequences|125
3|3.6.2 Different Functions of Secondary Legal Consequences|128
4|3.6.2.1 Extra Legal Consequences|129
4|3.6.2.2 Legal Consequences That Fill Gaps|130
4|3.6.2.3 Secondary Legal Consequences That Replace Primary Legal Consequences|131
4|3.6.2.4 Avoidability as a Secondary Legal Consequence|133
3|3.6.3 Secondary Legal Consequences Are Attached to the Primary Legal Consequences|135
4|3.6.3.1 Three Forms of Dependence|136
4|3.6.3.2 Option 1: Secondary Legal Consequences Can Be Attached to Either the Juridical Act or to the Primary Legal Consequences|137
4|3.6.3.3 Option 2: All Secondary Legal Consequences Are Attached to the Primary Legal Consequences as the Product of a ‘Chain-Reaction’|138
4|3.6.3.4 The Argument in Favour of Option 2|139
3|3.6.4 The Argument in Favour of the Distinction Between Primary and Secondary Legal Consequences|140
2|3.7 The Juridical Act as a Speech Act in the World of Law|140
2|References|142
1|Chapter 4: The Value of the Theoretical Concept|144
2|4.1 Introduction|144
3|4.1.1 The General Value of Theoretical Concepts|145
3|4.1.2 The Value of a Theoretical Concept of a Juridical Act|147
3|4.1.3 The Value of the Particular Theoretical Concept as Created|149
2|4.2 The Dutch Concept Rechtshandeling|150
3|4.2.1 The Rechtshandeling in the Dutch Legal System|151
4|4.2.1.1 The Dutch Concept of rechtshandeling as Defined by Meijers in 3:32ff of the Civil Code|151
4|4.2.1.2 The Concept of the ‘publiekrechtelijke rechtshandeling’|153
4|4.2.1.3 The Theoretical Concept of the Juridical Act|154
2|4.3 Juridical Acts in the English Common Law System|154
3|4.3.1 Offer and Acceptance|155
3|4.3.2 To Make a Statutory Law|156
2|4.4 Ambiguity in the DCFR|157
3|4.4.1 Two Contractual Models|158
4|4.4.1.1 Contract as Consensus|158
4|4.4.1.2 Contract as Offer and Acceptance|159
3|4.4.2 The DCFR|160
2|4.5 A Comparison Between the Competence Needed for a Beschikking and for the Verwaltungsakt|160
3|4.5.1 The Competence Needed for a Beschikking as Compared to the Theory on Competence as Developed|162
4|4.5.1.1 Personal Competence|163
4|4.5.1.2 Functional Competence|163
3|4.5.2 The Competence Needed for a Verwaltungsakt as Compared to the Theory on Competence as Developed|165
4|4.5.2.1 Personal Competence|165
4|4.5.2.2 Functional Competence|165
3|4.5.3 The Competence Needed for a Beschikking as Compared to the Competence Needed for a Verwaltungsakt with the Help of the Concept of Competence as Developed|166
4|4.5.3.1 Personal Competence|167
4|4.5.3.2 Functional Competence|167
2|4.6 Can Computers Perform Juridical Acts?|168
2|4.7 The Value of the Theoretical Concept|173
2|References|173
1|Chapter 5: Conclusions|176
2|5.1 Introduction|176
2|5.2 The Delineation of the Theoretical Juridical Act|176
3|5.2.1 Four Characteristics|177
2|5.3 The Performance of the Juridical Act and the Connection Between Act and Consequences|178
3|5.3.1 A Speech Act Counts as a Juridical Act|179
3|5.3.2 The Juridical Act Leads to Primary Legal Consequences|179
3|5.3.3 Secondary Legal Consequences|181
2|5.4 The Value of the Theoretical Concept of a Juridical Act|183
1|Bibliography|185
1|Contents|7
1|Chapter 1: Introduction and Method|10
2|1.1 Introduction|10
2|1.2 Concepts in Law|12
3|1.2.1 Legal Concepts|13
2|1.3 A Working Knowledge of the Theoretical Concept|16
2|1.4 Method: Exchange Between Theory and Practice|16
2|1.5 Two Theoretical Stepping Stones|17
3|1.5.1 Institutional Theories of Law|18
4|1.5.1.1 Legal Constructivism; The Law as a Discursive Practice|19
4|1.5.1.2 Law as Institutional Fact|19
4|1.5.1.3 The World of Law|24
3|1.5.2 Speech Act Theory|25
2|1.6 The Theoretical Concept of a Juridical Act|27
2|1.7 The Value of a Theoretical Concept of a Juridical Act|30
3|1.7.1 The Value of a Theoretical Concept in General|30
3|1.7.2 The Value of a Theoretical Concept of a Juridical Act|31
3|1.7.3 The Value of the Creation of This Theoretical Concept of a Juridical Act|32
2|References|33
1|Chapter 2: The Delineation of the Theoretical Concept of a Juridical Act|36
2|2.1 Introduction|36
2|2.2 Delineation|36
3|2.2.1 The Type of Juridical Act Needs to Exist|37
3|2.2.2 Competence|40
4|2.2.2.1 Practical Power|42
4|2.2.2.2 Competence|44
3|2.2.3 A Juridical Act Is a Constitutive Speech Act|50
4|2.2.3.1 Austin on Speech Acts|50
4|2.2.3.2 Searle on Speech Acts|53
4|2.2.3.3 Constitutives|57
4|2.2.3.4 The Act Needs to Have a World-to-Word Direction of Fit|61
4|2.2.3.5 The Act Needs to Have a Propositional Content|62
3|2.2.4 The Juridical Act Is Not Defined by Its Consequences|62
2|2.3 The Delineation of the Theoretical Concept of a Juridical Act|64
2|References|65
1|Chapter 3: The Juridical Act as a Speech Act in the World of Law|67
2|3.1 Introduction|67
3|3.1.1 The Process of Performing a Juridical Act|67
3|3.1.2 Nullities|70
3|3.1.3 Upcoming Issues|71
2|3.2 The Function of Rules in the World of Law|71
3|3.2.1 MacCormick on Law as Institutional Facts|71
3|3.2.2 Counts-as Rules|73
3|3.2.3 Attached-to Rules|75
3|3.2.4 Leads-to Rules|76
2|3.3 The Speech Act Can Count as a Juridical Act|78
3|3.3.1 Counts-as Rules|79
3|3.3.2 Counts-as Rules and How-to Rules|80
3|3.3.3 Non-existence|82
2|3.4 The Juridical Act Can Lead to Primary Legal Consequences|83
3|3.4.1 Illocutionary Force, Propositional Content and the Primary Legal Consequences of the Juridical Act|84
4|3.4.1.1 Option 1: Both the Illocutionary Force and the Propositional Content Determine the Primary Legal Consequences and the Illocutionary Force Is Functionally Represented in the Primary Legal Consequences|85
4|3.4.1.2 Option 3: The Primary Legal Consequences Are Based Solely on the Propositional Content. The Normativity of the Primary Legal Consequences, If Present, Is a Part of the Propositional Content|87
4|3.4.1.3 Option 2: Both the Illocutionary Force and the Propositional Content form the Primary Legal Consequences. The Illocutionary Force Is Not Functionally Represented in the Primary Legal Consequences But Merely Forms the Basis for the Normativity|89
4|3.4.1.4 Advantages and Complications|90
4|3.4.1.5 Conclusion|98
3|3.4.2 Interpretation of the Juridical Act|99
4|3.4.2.1 Legal Interpretation Rules|99
4|3.4.2.2 Interpretation of a Juridical Act|101
3|3.4.3 Leads-to Rules|102
4|3.4.3.1 The Primary Legal Consequences Inherently Imply the Existence|105
4|3.4.3.2 A Rule Gives Legal Effect to the Content of the Primary Legal Consequences|108
4|3.4.3.3 The Primary Legal Consequences Inherently Imply the Existence|111
4|3.4.3.4 Laws and the Gap Between Is and Ought|111
4|3.4.3.5 Leads-to Rules|113
2|3.5 The Juridical Act Does Not Lead to (All) Legal Consequences|114
3|3.5.1 Can There Be a Juridical Act Without Legal Consequences?|114
4|3.5.1.1 Juridical Acts as Acts That Are Defined by Their Consequences|115
4|3.5.1.2 Juridical Acts as Acts That Are Not Defined by Their Consequences|115
4|3.5.1.3 The Juridical Act Should Not Be Defined by Its Legal Consequences|115
3|3.5.2 The Juridical Act Has No Legal Consequences|118
4|3.5.2.1 Option 1: The Leads-to Rule Does Not Lead to Legal Consequences|119
4|3.5.2.2 Option 2: The Legal Consequences Are Subject to Two Different Rules|121
4|3.5.2.3 The Argument in Favour of Option 2|123
2|3.6 Secondary Legal Consequences|123
3|3.6.1 The Difference Between Primary Legal Consequences and Secondary Legal Consequences|125
3|3.6.2 Different Functions of Secondary Legal Consequences|128
4|3.6.2.1 Extra Legal Consequences|129
4|3.6.2.2 Legal Consequences That Fill Gaps|130
4|3.6.2.3 Secondary Legal Consequences That Replace Primary Legal Consequences|131
4|3.6.2.4 Avoidability as a Secondary Legal Consequence|133
3|3.6.3 Secondary Legal Consequences Are Attached to the Primary Legal Consequences|135
4|3.6.3.1 Three Forms of Dependence|136
4|3.6.3.2 Option 1: Secondary Legal Consequences Can Be Attached to Either the Juridical Act or to the Primary Legal Consequences|137
4|3.6.3.3 Option 2: All Secondary Legal Consequences Are Attached to the Primary Legal Consequences as the Product of a ‘Chain-Reaction’|138
4|3.6.3.4 The Argument in Favour of Option 2|139
3|3.6.4 The Argument in Favour of the Distinction Between Primary and Secondary Legal Consequences|140
2|3.7 The Juridical Act as a Speech Act in the World of Law|140
2|References|142
1|Chapter 4: The Value of the Theoretical Concept|144
2|4.1 Introduction|144
3|4.1.1 The General Value of Theoretical Concepts|145
3|4.1.2 The Value of a Theoretical Concept of a Juridical Act|147
3|4.1.3 The Value of the Particular Theoretical Concept as Created|149
2|4.2 The Dutch Concept Rechtshandeling|150
3|4.2.1 The Rechtshandeling in the Dutch Legal System|151
4|4.2.1.1 The Dutch Concept of rechtshandeling as Defined by Meijers in 3:32ff of the Civil Code|151
4|4.2.1.2 The Concept of the ‘publiekrechtelijke rechtshandeling’|153
4|4.2.1.3 The Theoretical Concept of the Juridical Act|154
2|4.3 Juridical Acts in the English Common Law System|154
3|4.3.1 Offer and Acceptance|155
3|4.3.2 To Make a Statutory Law|156
2|4.4 Ambiguity in the DCFR|157
3|4.4.1 Two Contractual Models|158
4|4.4.1.1 Contract as Consensus|158
4|4.4.1.2 Contract as Offer and Acceptance|159
3|4.4.2 The DCFR|160
2|4.5 A Comparison Between the Competence Needed for a Beschikking and for the Verwaltungsakt|160
3|4.5.1 The Competence Needed for a Beschikking as Compared to the Theory on Competence as Developed|162
4|4.5.1.1 Personal Competence|163
4|4.5.1.2 Functional Competence|163
3|4.5.2 The Competence Needed for a Verwaltungsakt as Compared to the Theory on Competence as Developed|165
4|4.5.2.1 Personal Competence|165
4|4.5.2.2 Functional Competence|165
3|4.5.3 The Competence Needed for a Beschikking as Compared to the Competence Needed for a Verwaltungsakt with the Help of the Concept of Competence as Developed|166
4|4.5.3.1 Personal Competence|167
4|4.5.3.2 Functional Competence|167
2|4.6 Can Computers Perform Juridical Acts?|168
2|4.7 The Value of the Theoretical Concept|173
2|References|173
1|Chapter 5: Conclusions|176
2|5.1 Introduction|176
2|5.2 The Delineation of the Theoretical Juridical Act|176
3|5.2.1 Four Characteristics|177
2|5.3 The Performance of the Juridical Act and the Connection Between Act and Consequences|178
3|5.3.1 A Speech Act Counts as a Juridical Act|179
3|5.3.2 The Juridical Act Leads to Primary Legal Consequences|179
3|5.3.3 Secondary Legal Consequences|181
2|5.4 The Value of the Theoretical Concept of a Juridical Act|183
1|Bibliography|185