Visualization between fictitious law and factual behaviour: A pragmatic-institutional analysis

Abstract

The concept of visualization, its function, and role in the relationship between fi ctitious legal rules and factual behaviour will be the focus of this chapter.Based on the view that legal rules express a message that needs to be thought of as real, processes of visualization will be analysed, in particular in the dialogical context of the legal rule as a sequence of linguistic signs, expressing an action-idea, on the one hand, and observable behaviour in accordance with the rule, on the other.The point in question is how we can ‘See’ and ‘know’ the rule’s content that is notavailable for direct observation. A legal rule, in the words of Alf Ross, is an indiscernible phenomenon, a ‘thought object,’ and an ‘action-idea’, compared to the factual and observable behaviour that is related to the rule. Questions arise whether processes of visualization are dominated by linear causality between rule and behaviour or whether reciprocal elements are involved. Are these processes individually determined or within groups? In the fi rst part of this chapter, the Institutional Theory of Law as well as the Scandinavian Legal Realists and their concept of legal language as imaginary terminology together form the building blocks for the construction of an analytical framework. In the second part of this chapter, a case study will be described, focusing on the rules of war (meanly the 1945 UN Charter), on the one hand, and observable behaviour (actual warfare during ‘peacekeeping missions’), on the other. The relationship between the law of war and actual warfare is situated in the aftermath of 9/11. Finally, the framework will be used as an instrument to analyse the case study. Concluding remarks will be made in the last section