Beyond Methodological and Theoretical Individualism – Are There Collective Actors or Collective Subjects in Modern Legal Systems?
Abstract:1. Conventional theories of norms and action are usually based on individual human behaviour. They examine whether and to what extent certain intentions of the actors correspond to their legal actions.
– Actions are understood as the intentional behaviour carried out by certain subjects of action, that is, by a ‘human being’, an ‘individual’, a ‘person’ or a ‘legal subject’.
– Legal actions appear as the expression of a will (so called theory of will) declared by a legal subject (subject theory).
– From the point of view of legal and social theory we can, therefore – here in agreement with Georg Henrik von Wright – speak of deliberative intentionalism.
2. There can be little doubt that both legal practice and legal theory require not only normative standardization and patterns of behaviour but also socially adequate theories which enable us to attribute individual (concrete) behavior to certain persons as factual action.
– To observe and reconstruct, i.e. to describe, interpret and explain these processes of attribution is one of the tasks required of a theory of norms, especially of law.
– Legal communication which is, of course, the means of producing and imparting normative information appears nowadays as the crucial Operation in this task both from the point of view of legal practice and legal theory.
– The distinction between communication and action allows us to develop and expand systems of normative meaning, especially those of the law.
– Concrete legal actions which in the normatively structured communication procede in accordance with the rules of law without being inescapable determined by them do, however, have to be differentiated from the communication structure of legal facts and normative premises.
3. It is one of the most important tasks of contemporary legal and social theory to develop a theory of norms and action which takes account of the requirements of the modern information- and communication society.