Repository | Book | Chapter

In this chapter, the author argues that legal symbolism is part of the process of functional differentiation and no piece of symbolic legislation, therefore, can provide access to the moral values and principles guaranteeing the normative unity of modern pluralistic society. It would be too ambitious to expect that the contemporary system of positive law can answer the philosophical question and grant our access to a shared universe of symbols which would normatively reflect on the meaningful existence of society and its members. The chapter opens by briefly addressing Ernst Cassirer's philosophy of a symbolic universe of human ideals materialised in and differentiated into different social sectors, such as religion, art, science and law. It subsequently discusses Emile Durkheim's sociological functionalist view of law as an external index of social solidarity. Unlike romanticising theories looking for lost foundations of authentic social life and Volksgeist, Durkheim's sociological theory firmly analyses the general function of law as a symbol of social solidarity and totality of social life. However, law cannot claim general moral authority in functionally differentiated society and the paradoxes emerging between the instrumental rationality of legal regulation and the symbolic rationality of law as an expression of moral community cannot be de-paradoxified by claiming the supremacy of social cohesion and commonly shared values and principles. Instead of being treated as a foundational and/or external determination of legality's meaning and content, symbolic communication needs to be analysed as specific communication internalised by the legal system which, rather than building ultimate moral commonwealth and social cohesion, only contributes to further differentiation between the instrumental and symbolic rationality of law.

DOI: 10.1007/978-3-319-33365-6_7

Full citation: