A Propaedeutic Approach to Legal Communication. Legislative Inflation, Legal Message and Juridical Noise

By Butculescu, Claudiu Ramon D. | Contemporary Readings in Law and Social Justice, July 1, 2017 | Go to article overview

A Propaedeutic Approach to Legal Communication. Legislative Inflation, Legal Message and Juridical Noise


Butculescu, Claudiu Ramon D., Contemporary Readings in Law and Social Justice


(ProQuest: ... denotes formulae omitted.)

1.Introduction

Generally, the inflation is characterized as a continuous increase in the price of goods and services (http://www.merriam-webster.com/dictionary/inflation). In the legislative environment, the legislative inflation is characterized by the uncontrolled growth of legislative acts. In specialized literature, the inflation of norms is also considered a serious phenomenon, both on national and European Union level (Šulmane, 2011: 83).This inflation implies at the same time a legal stream of norms that is split into three categories: those necessary for the development of the society, which do not constitute legislative inflation, those that are useful for the society, although not required and may contribute to the effectiveness of the system and finally, those who exceed social necessity and may be qualified as legislative inflation. Naturally, the inflation is only specific to formal communication of the law, not to the material communication of the law. In order to explain what formal communication of law and material communication of law means, we should analyze the notion of sources of law. The sources of law may be split into two categories: formal sources of law and real or material sources of law. The material or real sources of law practically include the configuration factors of the law, natural law, and legal conscience (Bădescu, 2013: 108). The formal sources of law include the provisions enacted mostly by the authorities. These sources may come also from other operators of law, such as various professional bodies (Niemesch, 2014: 92). However, only the public authorities have the power to enforce mandatory provisions for individuals (Ciongaru, 2012: 30). Still, when such mandatory regulations overcome in frequency, the capacity of the subjects to understand and accept them, legislative inflation occurs. The most common means by which legislative inflation appears is a strange one. As a result of drafting legal norms, the degree of information entropy of the society increases. This increase is augmented also by the ambiguity of some terms and rules of conduct, leading sometimes to non-unitary practices.

In such situations, the legislative body intervenes to clarify such legal situations encountered, usually through authentic interpretation. Authentic interpretation means the interpretation of legal norms, given by the legislator, which aims to alleviate the uncertainty of the law and thus reduce the entropy. Unfortunately, these interventions clarifies some legal aspects, but can lead to ambiguity regarding others, which in turn causes further legislative intervention, although is expected from the law to offer a certainty superior to custom or jurisprudence (Măgureanu, 2014: 274). The sum of these legislative interventions leads to legislative inflation. Legal inflation is closely linked to legislative pollution, although that the two are different, given that legislative inflation must be analyzed from the perspective of the issuer, while in the case of legislative pollution it must be analyzed from the perspective of the receiver. The information entropy within the process of legislative intervention is considered significant in Romanian doctrine, being linked to technical procedures and the effective creation of legal provisions (Bădescu, 2013: 252).

1. Legislative Inflation

The inflation as a negative process has been tackled in economic literature (Frisch, 1983: 2-10), as well as in legal doctrine (Dutu, 2015: 251). I propose a more detailed analysis of the legislative inflation, with regard to the legal noise and legal information. Within this paper, the legal noise is noted as Jn, meaning "juridical noise".

Thus, we could define the legislative inflation as excess of legislative information, transmitted by the issuer to the receiver, which is neither necessary nor useful. Legislative inflation can be evidenced by the following formula:

. …

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