The consequence of a legally relevant fact to which positive law attributes is a change in the legal status of a legal person, including a change in its legal powers, rights or obligations: the current mode of existence of the right, which is then correctly conceived, consists of a dynamic set of speech acts.4 As the above-mentioned working definition has shown, a certain legal effect is attributed, when certain legal requirements are clearly met, but this is obviously not always easy: almost nothing in the law is as simple as a person with legal power, pronounces a statement in the first person singular such as “I pronounce you partners”, to whom legal effect is attributed, which takes effect immediately. Part of the complexity is also due to the fact that speech act theory was developed in the context of oral speech rather than the written text, whereas the law was traditionally text-oriented. However, “language” can and is used in some of the philosophical literature on speech act theory to encompass more than language in the traditional oral sense. Let`s move on to some examples to see how the legal effect can be defined as the performative effect of a series of acts that are considered acts of speech: a legislator enacting a rule on the legal effect of entering into contracts, followed by two parties entering into a contractual agreement on the sale and purchase of a car. If one of the parties then claims that the contractual conditions have been violated, for example: Since the seller does not comply with his part of the transaction and the car is not in the agreed condition or does not meet the requirements discussed, then the aggrieved party claims in court that the other party has violated the contract in one way or another and is liable for damages, followed by the court deciding the case.5 The acts of speech reveal how language not only describes our reality, but can also constitute it. Austin himself stated at the beginning of his first William James lecture, a series of lectures that culminated in his seminal book How to Do Things with Words, that performatives might disguise themselves as factual assertions, but this was not the case. He says in a footnote: “Of all the people, lawyers should know the real situation best. Maybe there are a few now. Nevertheless, they will succumb to their own frightening fiction that a statement about “the law” is a statement of fact.3 The fact that this distinction is of paramount importance to the law is also demonstrated by the fact that some of the most impressive examples in the literature on the theory of the act of speech, for example the pronunciation of a marriage (“I declare you married”). are of a legal nature.
This is what the basic legal effect is: the legal effect is attributed to a performative – change in the legal powers or legal status of legal entities – when certain conditions are met, which may vary depending on the jurisdiction, for example from single to married. Our linguistic interaction creates linguistic artifacts that change our common institutional world, change our perception of that world, and change us in the process. Empty. Zero; unfit; worthless; have no legal force or binding effect; is not legally able to support the objective for which it was intended. The term “legal effect” is used colloquially and differently in case law. Colloquially, one can perhaps refer extensively to the effects of law on society, but in law it has a very specific meaning. Some concrete examples illustrate its importance in the legal context: the legal effect thus considered consists not only of acts of oral legal discourse (e.g. declaration), but also of written legal acts (e.g. decrees). While an act of written or performative discourse may seem a contradiction in terms, modern law consists of both unwritten and written performatives.
While oral performatives are directly integrated into the context in which they were pronounced, written performatives (like most texts) survive well beyond the moment of inscription and are therefore developed in time and space. This instantiation in time and space makes the context of paramount importance and interpretation in the light of the context the hallmark of positive law, which requires particular attention to the basic knowledge implicit in play. It appears that the literature on speech act theory has so far focused neither on written speech acts nor on the contextual information necessary to understand a speech act.7 While the direct circumstances in which an act of speech is delivered are clear, as is the case with most oral communications, Contextual information (common context or implicit knowledge) usually does not need to be explicitly specified. However, because of the affordances of the written text, this must be made explicit, especially in the law. These affordances take into account the complexity of modern positive law and the nature of legal effect, which is a necessary condition of the law and thus constitutes the backbone of legal protection. The legal effect is also decisive for the establishment of the powers to balance the rule of law. While the legal effect is not the panacea for what modern law is or does, it could be characterized as its vanishing point and is at the heart of a hermeneutic understanding of law. This is what distinguishes law from other types of norms and is neither a question of raw fact nor a question of mechanical application.1 Therefore, it is one of the most important building blocks of what constitutes modern law, and it is what makes possible an architecture that structures society, since it guides people. as legal subjects, in our common institutional world. But to properly and clearly explain the notion of legal effect, it is crucial to situate where the real “effect” lies in the current mode of existence of the law. To do this, we must turn to the theory of the act of speech, because “the nature of positive law implies the granting of legal effect when certain legal conditions apply, bearing in mind that such a legal consequence is the performative effect of a dedicated series of acts of speech consolidated in a dynamic corpus of legal texts”.2 Speech acts are acts that are performed on the basis of their enunciation: They do what they say.
Such acts of “performative” or “illocutionary” discourse, as J.L. Austin called them, are not the cause of action, but represent that action. Performative acts can be compared to “constative” or “locusionary” acts, which are propositional or descriptive rather than performative. An award that means that one party has no legal rights against another party. It is often used in two contexts: Ab initio (/ˌæb ɪˈnɪʃioʊ/ AB in-ISH-ee-oh) is a Latin term meaning “from the beginning” and is derived from the Latin ab (“of”) + initio, the singular ablative of initium (“beginning”). “Null ab initio” is often compared to “voidable”, i.e. documents that become null and void only on the date of the corresponding judicial declaration.