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Reading Law: On Law as a Textual Phenomenon

Ino Augsberg

Abstract. In contrast to recent German debates stating that jurisprudence should transform itself from a hermeneutic science of texts into a practical science of decision making, this essay proposes a return to the text. Text, however, will then have to be understood no longer as merely a written form of language. Rather, we should attempt to conceive of the legal system itself as a specific form of textuality. I try to develop and elaborate this idea by regarding law from the various perspectives of Paul de Man’s literary criticism, John Austin’s discussion of performative utterances, Roland Barthes’ deconstruction of hermeneutics, media theory, and an ex negativo approach based on Carl Schmitt’s scorn for normativism. Finally, I ask for possible practical consequences that the newly designed textual understanding of the legal procedure might have. Keywords: textuality, hermeneutics, literary theory, deconstruction, Paul de Man

Do we really know what we do when we read legal texts? Or is this focus on reading a rather old-fashioned, now obsolete form of jurisprudential methodology that has to be replaced by new perspectives? In some current German debates in the field of public law, the second question is answered in the affirmative. Legal scholarship is said to face significant changes. To be adequately prepared for the challenges of modern society, jurisprudence will have to transform itself from a hermeneutic science of texts into a pragmatic science of actions.1 What we need, according to the proponents of this idea, is a transition from the currently dominant “application-oriented science of interpretation to a law-making-oriented science of actions and decisions.”2 Remarkably enough, though, this abandonment of traditional text orientation does not pay much attention to the actual concept of a “text.” It does not

Law & Literature, Vol. 22, Issue 3, pp. –. issn 1535-685x, electronic issn 1541-2601. © 2010 by The Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525 /lal.2010.22.3.

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ask whether and to what extent the alleged necessity of change might itself be based on an inadequate idea of how texts and interpretations work. This deficiency is not simply an anomaly within particular contemporary debates, but rather is typical of jurisprudence in general: In spite of all the oftrepeated demands for an increase in interdisciplinary research,3 jurisprudence has shown a remarkable indifference towards the discussions of texts and textuality that began decades ago within literary criticism and have continued ever since.4 From this point of view, even methodological approaches that consider themselves particularly modern appear, upon closer examination, strangely old-fashioned: “[T]hough the traditional legal method is criticized as reductionistic and one-sided, the remedy for these shortcomings is not seen in a fundamental change of methodological perspective, but rather in the mere addition of additional perspectives that supplement and relativize the conventional perspective.”5 As an alternative to this pseudomodern approach, to what extent could a return to the text and its particularities, informed by the insights of literary criticism, offer an all-encompassing new methodological approach appropriate for the modern legal system? The following essay explores this question in six different steps, in the process providing a general outline of what a more detailed answer might look like.6

I.

The first step is to examine why it is inadequate merely to concede that the process of interpreting statutes can no longer lead to unambiguous results.7 Such a concession proves to be problematic already because of its inherent historicism, for it is extremely doubtful that there was ever a time when the clearly defined facts of a case were confronted with equally clearly defined statutes that could simply be applied to those facts.8 What needs to be explained more precisely, in contrast to this simplistic model, is the inherent situation of interpretation itself. This situation, and the indeterminacy to which it gives rise, should not be regarded merely as a pathological condition that needs to be overcome through the therapeutic use of a certain “language medicine.”9 “It is,” literary critic Werner Hamacher declares, “one of the trivia of literary criticism that every text is open to an illimitable abundance of interpretations, applications, and reactions; but most crucially, this manifold of interpretive possibilities does not indicate a lamentable insufficiency of the
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Every text subverts its own coherence. which cannot sublate the aporia of its operations to the unity of an act.”15 de Man writes in a “highly ironic. . applies to language in general: Every reading is riven.14 “Die Sprache verspricht (sich).and extra-textual movements never reaches a synthesis. in which the understanding could be certain of its own impossibility and could construct on this certainty a new. .”12 spoken mainly in regard to metaphors.”16 To “the extent that it is necessarily misleading. . rather. The promise—in German: Versprechen—of language remains unfulfilled. prevents the text from closing into a totality. every text—has within itself the ignorance of its own exterior as the rupture of its own coherence which it cannot account for.”17 The reference to the denominated objects constitutes. I want to propose a method of reading that prompts us “to look beyond natural experience or its mimesis to a specifically linguistic dilemma”11: If we think of reading in the usual way. but it does so with necessity. but necessary conjunction of Heidegger’s gnome ‘Die Sprache spricht’ and Freud’s vocabulary. . language just as necessarily conveys the promise of its own truth. De Man’s declaration that the “co-presence of intra. at the same time. . This undecidable relation to what it is constantly related to. The structure of language does not simply make different interpretations of texts possible. is an allegory of unreadability. as the bearer of one certain meaning.13 Since we can never tell for sure whether what is being said is not merely functioning as a form of self-attribution of language. Following Paul de Man. seemingly simpler process of reading legal texts. and none can determine that relation. every system—that is. negative hermeneutics of a “free” play of associations but in which it articulates this aporia 371 .”10 This structural necessity affects not only the interpretation but also the preceding. the referentiality of language is always precarious. it is a structural effect of the constitution of language itself. in this sense. Reading. . the difference by means of which language exempts itself from the relation to reality. as referential understanding. No text can remove itself from a relation to the extralinguistic. then this process becomes apparent as a paradoxically possible-impossible operation. It cannot be received as a compact entity.Augsberg • Reading Law interpreters that could be healed in a messianic moment. not able to form that unity of meaning that constitutes the basis of a meaning-oriented act of understanding: Every construction.

The disjunction of the semantic function and the formal structure of language. can be characterized as deconstructive. of hetero. .”21 Every statute remains clamped between the twofold. on the contrary. in its own genuinely juristic modus operandi. which cannot be described as a simple polarity but rather constitutes the undecidability of grammatical and figurative readings. it must not fall short of its reference to the external sphere. “The legal or political text makes the structure of texts in general more explicit. grammatical logic can function only if its referential consequences are disregarded. but the claim to unequivocal domination of one mode of signifying over another.”19 As Barbara Johnson explains: The de-construction of a text does not proceed by random doubt or arbitrary subversion. this process must comply with its own requirements of internal consistency. This type of reading supposedly does not destroy but.22 Only if its generality is assured through a certain brutality toward the referential relation can the applicability of a law as a general norm be guaranteed. 372 .18 A reading that does not try to hide. of course. If anything is destroyed in a deconstructive reading. Law proves to be a text in an eminent sense because it reproduces. but by the careful teasing out of warring forces of signification within the text itself. but that instead analyses and learns to deal with the inevitable immanent ruptures within every text. conflicting claims for generality on the one side and applicability to the singular case on the other: [J]ust as no text is conceivable without grammar. while on the other hand. A deconstructive reading is a reading that analyses the specificity of a text’s critical difference from itself. “saves the text. has a direct parallel in the typical juridical process of applying a norm. . no grammar is conceivable without the suspension of referential meaning. N u m b e r 3 as the continued discrepancy between the necessary and the impossible act of reading—as an ironic one.20 The ironic aporia elaborated by such a form of reading does not apply only to the field of literature in the narrow sense. oneself. Just as no law can ever be written unless one suspends any consideration of applicability to a particular entity including. It ‘defines’ the general text better than any other. It affects specifically juristic operations as well.L a w & L i t e r a t u r e • Vo l u m e 2 2 . it is not the text. the undecidability between the demands of grammar and those of referentiality.and self-reference. . On the one hand.

”26 The precondition of legal interpretation is formed by two readings that necessarily contradict each other. general potential for meaning to a specific unit. Only by thus referring it back to particular praxis can the justice of the law be tested. but. The fundamental uncertainty that threatens to enter the system so obviously contradicts the system’s function of stabilizing normative expectations27 that the system cannot allow this uncertainty to reveal itself openly. The judicial judgement is. . it is this generality. which ruthlessly rejects any particularization. [N]o law is a law unless it also applies to particular individuals.25 This explains the necessity of a “juxtaposition of two readings in which the first forgets and the second acknowledges the linguistic structure that makes it come into being. but he writes and speaks.23 But at the same time. on the contrary. the suppressed referentiality has to be identified as the juridical structure par excellence. Within the textual model. What we have to examine.24 for the statute insists on referring to its own applicability. The judge does not spell every letter of the law. The indifference of the text with regard to its referential meaning is what allows the legal text to proliferate. It cannot be left hanging in the air. . He articulates himself as the law. II. is how the traditional self-description of the legal system reacts to this dilemmatic double-bind situation. in a classically phonocentric way.Augsberg • Reading Law From the point of view of the legal text. . in the abstraction of its generality.”28 373 . since reference is the application of an undetermined. supposed to guarantee the unity of what is heard and what is understood. what we see is that it has great difficulties in dealing with these kinds of ironic aporias. Not even an otherwise advanced methodology questions this perspective. which allows for the possibility of its coming into being. reaffirms it: “the judge does not listen and read. The unreadability is concealed by a prearranged primacy of the voice: as juris-diction. The construction of the legal system can therefore be regarded as the more or less successful attempt to avoid this irony. then. exactly as the justesse of any statement can only be tested by referential verifiability. and therewith constitute the unreadability of the law. particularization corresponds to reference.

of the entire context. namely the state of the law. suggests that it is only repeating what was established before by statute. Although the judgement. . However. appropriate. illimitable and uncontrollable: First. Austin’s distinction between performative and constative speech acts. we can start off with John L. produces the effects it is supposed to in an adequate manner. 374 .” that is. . yielding a new context which escapes the previous formulation. at the latest as of Napoleon’s lamentation over his “code perdu. in a double sense. the context proves to be. depends. is whether such totalization is possible. at first glance. . to what might be shown to be relevant to the performance of a particular speech act.34 It is a problem of factual circumstances as well as of time. consistent comprehensibility requires a concept of the “total speech situation. on the context in which the act takes place: “Speaking generally. N u m b e r 3 Yet a modified concept of text and writing might help to clarify what exactly goes on in the legal process. [Secondly. Whether such an act is “right.”33 that is.L a w & L i t e r a t u r e • Vo l u m e 2 2 .] any attempt to codify context can always be grafted onto the context it sought to describe. But if we can no longer believe in the criteria of a steadfast legal text.29 To take a closer look at such a modified concept. any given context is open to further description. then. it is always necessary that the circumstances in which the words are uttered should be in some way.”32 Though a complete standardization of the situational embedding might not be needed. we have to ask for the particular conditions under which a performative speech act can said to be correct.”30 From this perspective the legal judgement appears as a performative speech act par excellence: The announcement of the judgement in a legal process is more than a mere declarative statement with regard to an established issue. With regard to the factual dimension.35 With respect to time we find an analogous problem: Performative utterances function only because of their embeddedness within ritualized patterns of behavior.”31 have vanished. which have to combine experiences of the past with anticipations of the future. Characteristic for performative speech acts is that to utter a sentence in this way “is not to describe my doing of what I should be said in so uttering to be doing or to state that I am doing it: it is to do it. There is no limit in principle to what might be included in a given context. The problem. the belief that the judge’s activity is so limited should. or ways. according to Austin.

No “meaning can be determined out of context. status of his construction: Admittedly. for it would lead to a completely automatic language beyond every comprehensibility. since one could not dissolve the signs from this hermetic context. If we take this fully into account. coinstantaneously. a call for self-preserving repetition”39. its own preconditions. recedes behind the merely declarative process of describing the outcomes of previously decided cases. The judgement says what it does and does what it says. Every positing carried out in legal judgements is “already iterability. regardless of how often it is repeated. autologically. which actively introduces new perspectives. exceeds the instance of its utterance.40 As a performative act.”42 This danger cannot be eliminated. if taken literally.36 In a paradoxical way.”38 The theory of speech acts deconstructs. legitimates the selfinterpretation of judgements as nothing more than a statement of the state of the law. or at least virtual. “there is danger of our initial and tentative distinction between constative and performative utterances breaking down. again.Augsberg • Reading Law if the temporality of linguistic convention. constative. the possibility of a clear distinction between constative and performative speech acts collapses. every legal decision. then it seems that part of what constitutes the “total speech situation” is a failure to achieve a totalized form in any of its given instances.”43 There is no peaceful coexistence between these two strangely 375 .”37 But the totalization is not only not possible. describes its own process. takes place as an inscription in an actual. the condition of possibility of successful performative speech acts is at the same time the condition of their impossibility. the deconstruction leading from one model to the other is irreversible but it always remains suspended. in the singularity of its performative occurrence. and hence. every judgement is. it is also not desirable. considered as a ritual.  is undecidable. Nothing else is meant by the requirement that the facts of a case be subsumed under the “controlling” norm. “A totally stabilised context would make the iterability of signs impossible. and that excess is not fully capturable or identifiable (the past and future of the utterance cannot be narrated with any certainty). “The differentiation between performative and constative language . This iterability that prevents the totalization of context is a characteristic element of the legal process as well. This. The more sharply one focuses on this aspect of repetition. but no context permits saturation. . plurality of corresponding operations.41 Austin himself is not unaware of the fragile. if not to say fictitious. the more the performative element.

and the referentiality that knows no secure ground other than that positing it disputes. one has to go beyond the usual idea that a science of texts suggests.”45 It is this combination of two irreconcilable perspectives that marks the judgement as.46 This janus-facedness of the text provokes the necessity of interpretation. . which. In this sense.L a w & L i t e r a t u r e • Vo l u m e 2 2 . The “definition” of the text also states the impossibility of its existence and prefigures the allegorical narratives of this impossibility. This reference to the performative component of the judicial process indicates that. which conceives of the process of understanding a text as a form of explication and in this context regards reading as a process of elaborating the meaning of what is being read. for once. III. replacing (or at least trying to replace) paraphrase by what one would 376 . Once the performative component is taken into account. Their undecidable community constitutes a paradoxical constellation. non-referential grammatical system and as a figural system closed off by a transcendental signification that subverts the grammatical code to which the text owes its existence. open-ended. continuously produces new uncertainties. . A text is defined by the necessity of considering a statement. the understanding of legal texts can no longer be characterized as a simple “cognitive achievement. nonreferential positing.”47 Contrary to the classical conception of hermeneutics. a text in an eminent sense: We call text any entity that can be considered from such a double perspective: as a generative. we can understand “law as text” as a chiffre for the failure of the sharp distinction between constative and performative speech acts. one were to reverse the ethos of explication and try to be really precise. according to a definition given by de Man. we can raise a question that addresses an even earlier stage of the reading process: “What would happen if. despite all attempts at stabilization. they contradict the constative assumption of the preconditional status of what one is referring to. For if “performatives are creating what they are talking about.”44 Hence the constative and the performative movements constitute two “interdependent but incompatible linguistic functions: the function of unverifiable. in order to understand the textuality of law. N u m b e r 3 interwoven types of language. at the same time. . as performative and constative.

behind which lies. but rather as an open texture. What postmodern theories apostrophise as the “death of the author” 49 affects the concept of meaning itself. “Once the Author is removed. of Barthes’ model. lost in this tissue—this texture—the subject unmakes himself. meaning (truth). in the tissue.”52 is.53 This transformed conception of reading. also contains a normative element. the generative idea that the text is made. Hillis Miller concisely calls an “ethics of reading”: By “the ethics of reading”  .  . which J. the claim to decipher a text becomes quite futile. In this formulation. to say the least. The author is replaced by a particular textual operation: “Text” means “tissue”. brought about by abandoning the assumption that reading can lead to epistemic certainty. part of the process that produces a text’s meaning.50 His approach is far more radical. we are now emphasizing. Barthes cannot be cited in support of either side in the classic hermeneutic debate about whether a more subjective or a more objective method of interpretation is desirable.  . to furnish it with a final signified.”51 The assumption that in Barthes’ theory the text “is no longer seen as a prefabricated product with a fixed. as well as the consequence. just to see what would ensue?”48 This change of perspective in the direction of a reader-oriented point of view gives rise to a method that is no longer focused on the author’s intentions or the abstract meaning of the text. and free. I mean that aspect of the act of reading in which there is a response to the text that is both necessitated. Barthes’ model seems to still cling to the traditional concept of meaning. a ready-made veil. capable of being misunderstood. more or less hidden. like a spider dissolving in the constructive secretions of its web. whose meaning is always updated by the reader.  . in the sense that I must take 377 . he dismisses the entire traditional model.Augsberg • Reading Law have to call genuinely analytic reading. The difference becomes particularly evident in Roland Barthes’ definition of the reader’s role: Barthes does not conceive of this role as merely a supportive. To give a text an Author is to impose a limit on that text. albeit necessary. Therefore. By transforming the usually singular word “meaning” into a strange plural. in the sense that it is a response to an irresistible demand. to close the writing. He rejects the role of hermeneutics altogether. indeed still hidden yet definite and forever inscribed meaning. but whereas hitherto we have always taken this tissue as a product. whereas the abandonment of this concept is precisely the aim. is worked out in a perpetual interweaving.

The morality Habermas constructs on the basis of discourse ethics is supposed to conserve something of the “penetrating strength of sacral original powers.” antecedent to any form of immanent controversies (and be they only the formal procedures of correct speech). This theory of democracy would emphasize difference rather than identity. which can never be completed for once and for all. this normative aspect of reading can be paraphrased in terms of a theory of democracy: A positive expression of the democratic idea would consist in not breaking off debates prematurely. its immanent. In short: The community’s political institutionalizations. whose (salutory) certainties it replaces—thereby ‘sublating’ them—with its own “logical” formalisms relating to the procedure of argumentation. and personality in a manner that is unique for modern societies. society.L a w & L i t e r a t u r e • Vo l u m e 2 2 . N u m b e r 3 responsibility for my response and for the further effects. it reestablishes 378 . it penetrates the in-the-meantime functionally differentiated levels of culture. Habermas in particular claims a theological heritage for his program of completing the unfinished project of modernity. By this means.” institutional. but rather in allowing for their open-endedness. The fact that this banishing occurs less with regard to the substantive than with regard to the formal procedural aspects of the political process does not suffice to disguise its basic movement: Crucial is the gesture of restoring supposedly irreducible “truths. in the first instance.”56 Instead of trying systematically to uncouple the concepts of democracy and of sovereignty. but by its procedural elements. political.57 discourse ethics merely finds a new way of filling the place of the sovereign. thereby exposing his own pretensions. By attempting to fill the vacant position with deliberative processes. It is precisely this primacy of difference that certain theories of democracy seek to banish by making consensus the guiding principal of the democratic process. of my act of reading. social. an ongoing process that subverts every given result. and it would judge a democracy not by its results. “interpersonal. always open constitution. which had become empty.55 With remarkable candor. which everyone would always already have had to recognize and which everyone would always already be obligated to follow if a merciless war of destruction—and that is. or historical. such a “theory” transforms philosophy into the formal continuation of the old theology. the war against those who refuse to accept those irreducible truths—is not to come. is replaced by this constitution’s philosophical foundation.54 From a legal perspective.

by refusing to assign a “secret. of asserting the very existence of plurality. not only as an alienating adoption of.” an ultimate meaning to the text (and to the world as text). which is not that of the true. but also the foreign. the probable. to refuse God and his hypostases—reason. an activity that is truly revolutionary since to refuse to fix meaning is. is in no way liberal. authoritarian ideal. in the end. this relativism encompasses not only an indifferent acceptance of divergent possible interpretations. science.62 “Whoever believes that absolute truth or absolute values are inaccesible to human understanding has to accept that not only his own. with the new paradigm of “communication. Habermas’ “theology of communication”60 fails to understand that. liberates what may be called an anti-theological activity. it is a question. is the horizon of Barthes’ analysis of the death of the author: [L]iterature (it would be better from now on to say writing). Habermas’ conception unintentionally confirms a general thesis by Michel Foucault about the current state of political thinking: “We need to cut off the King’s head: in political theory that has yet to be done. just as communication cannot end in consensus without destroying itself.61 so the democratic process cannot be linked to the category “truth” without suffering irreparable harm.68 379 .”65 Since the king.64 Contrary to this priority of plurality. contemplation and reflection. it is not a question of conceding some meanings. but includes the fundamental priority of plurality over every— whether transcendentally or pragmatically constructed—sovereign unity. magnanimously acknowledging that each one has its share of truth. at least. By replacing the earlier philosophical universalia. in its plurality.”63 With regard to our transformed concept of hermeneutics. however. law. The interpretation demanded by a specific text. or even the possible.66 what needs to be decapitated is the entire system of occidental ontotheological metaphysics. Therefore relativism is the weltanschauung presupposed by the democratic idea. contrary opinion might be possible. against all in-difference.Augsberg • Reading Law a metaphysical. is in the classical political model only the earthly representative of higher powers. but also as a fundamental abandonment of the theological concept.” discourse ethics gives rise to an “intersubjective idealism”58: The replacement of the historical with the speculative Good Friday59 is followed by a communicative turn. This.67 Hence murdering the king is a process of secularization.

virtual. The physical substrate of positive law. but rather affects the form itself. but that. cannot be separated from attempted readings. “Reading” is just another word for this process. According to literary critic Aleida Assmann. in which its words are inscribed. then. is not merely the replacement of the old sovereign with a new governing subject.” constituted by way of contrafactual assumptions.”69 As we have seen. how were they modified in the course of time.L a w & L i t e r a t u r e • Vo l u m e 2 2 . that the readability of texts is guaranteed. but also underestimates the enduring relevance of texts in the computer age. that the physical existence. “The 380 . by reiterating itself within its own structures. allows for the emergence of something new. The fact that every linguistic operation takes place as a form in a medium does not remain an external circumstance. our discussion becomes part of a more general task: “Law has to be conceived of and analysed as a media constellation. hypertextual forms of law-making—which stand for the flexibility of positive. and second. and how did this affect the process of interpretation? To raise these kinds of questions already requires that we abandon the notion of the “possibility of separating a complex of meaning from its mediality. The democratic process would then designate a movement of constant repetition—a movement. or as a voicemail-message. “writing’s claim to and promise of eternity both rely on two basic assumptions: first. “demos. N u m b e r 3 Democracy. I V. of keeping it apart from the difference between its appearance on a printed page.e. that not only reproduces itself in a tautological sense. on the monitor of a computer. This raises the question of the materiality or mediality of law: What were the basic media of law.”70 Once we abandon this notion. nor can it be regarded merely as supplemental information in the manner of a pseudo-McLuhanism. law—we can observe that the common assumption that writing has decreased in importance in the age of digitalization not only misunderstands the situation within which laws first came to be written down. the general readability of texts is very much in doubt. Rather. i. however.”71 If we take a closer look at the process of transformation that led from archaic laws inscribed in stone tablets—which obviously symbolized the stability of the legal order—to modern. democracy takes shape as a political system in which governance is always fractured and the status of subjectivity always newly disseminated. and hence changeable.

it might be helpful to add another. as traditionally understood.”72 Conceived of as a paradoxical remainder that denies every attempt at gaining hermeneutical access.Augsberg • Reading Law text organizes itself based not only on the ideal meaning of its elements. the materiality of language undermines a kind of second-order idealism that would like to find meaning even in the physical basis of texts. but that becomes explicit in hypertexts. for instance. that divide the repetitions from each other. 381 .75 “No repetition leaves the repeated identity intact. for it is always a way around the Other. but that instead comes to bear “behind their backs” as a non-discoursive power. is just a variation on the more general problem of how to deal with a certain logic of repetition: According to this logic. It is the mediality of language that makes all conceptions of speech as an intentional. but that in the process only reproduces the dichotomy of signifier and signified.and a re-contextualization. not simply in the idea that what endures is better than what is transitory. V. rather. it constitutes a resistance to understanding:73 Media participate in the production of meaning in a way that speakers neither intend nor are able to control. This is the logic of writing. To illuminate further the logic of writing and the specifically legal necessity of the textual form. and it fails to do justice to the functional aspects of the writing process. These functional aspects themselves must be reconsidered.74 From this perspective. every repetition simultaneously requires both a de. negative perspective. the blank spaces.”76 The simple opposition of stability and variation fails to capture this perspective. The identity of what is repeated can only be understood as a form of difference. Mediality cannot easily be interpreted as a medially communicated message. the interplay between signifier and signified. “In a dynamically stabilized auto-poietic system of social communications there is no interest in the stability of meaning as such. open up transitions that the use of arguments can no longer control. but materiality itself intervenes in the organization of the text and may. intersubjectively controllable manipulation of signs fall short. The problem consists in anticipating a new interest in the same information.”77 It is this general logic of difference and repetition that the early stone tablets dissimulated.

Schmitt’s own conception of norm.”82 Schmitt understands nomos—in a philologically dubious manner83—as the original division and distribution. though it has in the course of time. the “Ur-Teilung und Ur-Verteilung”84 of a people’s land. the normativist thought appears to be the only reasonable form of legal thought. without state. a constitutive historical event. without church. analyzing conceptions of law that combine a preference for the spoken word with a distrust of positive law and that.”85 In this “original meaning. an act of legitimacy. general designation for every normativist regulation and adjustment.78 A typical exponent of this idea is the “most discussed German jurist of the 20th century.”86 This explains why Schmitt. since St. fantastic. which sees itself as being obligated only to law. Had it made more sense in youth? Compare with this the disapproval of ‘positivity’ by the young Hegel.L a w & L i t e r a t u r e • Vo l u m e 2 2 .” Schmitt declares. For them. Positivity = legality = Jewry = despotism = paroxysm of ‘ought to do’ and norm.89 Starting from the initial observation that a plurality of voices pronounces the 382 . Paul’s teaching on the “end of law.87 Not only did Schmitt explain “normativism” as one of the “three types of legal thought. yet easily recognizable—people.”81 Consequently. antipositivist figure. could reproach Kelsen’s “Pure Theory of Law” for its groundlessness. lost its original meaning. whereas statutes in a normativist sense are supposed to be a phenomenon of degeneration. employing a typical antisemitic stereotype. written in the year 1948. “that exist without ground. Schmitt wants to give back to the word nomos “its initial strength and greatness.” often carry an antisemitic subtext. states: “My disapproval of positivism came with growing age. and every other form of thought appears to be incomprehensible.”79 a legal scholar who. only in the law.” nomos is “the complete immediacy of legal force not mediated by statutes. the nomos. is described as a deliberately alegal.” but he assigned it to an—unnamed. or ridiculous. which gives meaning to the legality of the bare statute in the first place. he describes it as a “space-dividing basic operation.”88 Schmitt’s resistance to this type of thought. was “without doubt the most important man in Germany in the areas of constitutional and public international law”80: Carl Schmitt. “There are peoples. mystical. already in the ancient world. goes hand in hand with his effort to contrast the liberal notion of equality before the law with a homogeneity of a different kind. we must take a closer look at exactly the opposite position. and has at last sunk to an insubstantial. N u m b e r 3 To do so. according to Hannah Arendt. A note in his posthumously published Glossarium.

endlessly proceeding. then. that is. still spend our time reading Schmitt? Don’t both Schmitt’s open and his hidden antisemitic statements provide sufficient reason to assume that a modern legal theory has nothing to learn from his ideas? This latter question must be answered in the negative. deeper than the deceptive bond established by the pervertable letters of a thousand legal paragraphs.” His solution to this problem is what he calls Artgleichheit. Schmitt looks for a way to limit this plurality of voices while still preserving the “legally secured position of the German public servant and the independence of the judiciary. reveals the true nature of the occasional. more alive. without last judgement. “equality of nature”: We are looking for a bond more reliable.”96 383 . is to what extent this legal scholar’s work “corresponds to a problem that transcends the horizon of the suggested solution. without which a total leader state [Führerstaat] could not exist for one day. Schmitt calls it the “occasional. thereby subjectifying traditional occasionalism. then. Where else could we find it than within ourselves and our own nature? Here. It does so by placing the individual in the role previously reserved for God. in the “courage of his fear. without conclusion and without definition. in view of the indissolvable connection between officialdom and judicial independence. and everything that comes and everything that follows becomes.Augsberg • Reading Law same words and sentences differently. led only by the magic hand of chance. too. is not what Schmitt propagated as his “doctrine” or “lesson. In Political Romanticism.”91 What is interesting about Schmitt’s work. Through this subjectification. For Schmitt.”95 What emerges is “an always new. and yet in this fear. without decision.90 Why then should we. and without functional connections.”93 perceived accurately and presented. but only occasional world.”94 Schmitt introduces this concept to describe the romantic movement. The question that must be asked. without steadfast leadership.”92 but rather what he feared most. all questions and answers lead to the necessity of an equality of nature. for the first time. and proceeding to the assertion that this phonetic difference has grave consequences for the process of legal interpretation. against the background of such statements. The fact that it is impossible to adopt positively the types of positions described above does not exclude the possibility of learning something from Schmitt from an ex negativo perspective. a world without substance. at least in an indirect way. in an adventurous way. for the first time. everything can “really become an occasion for everything. incalculable. Romanticism.

”99 What Schmitt fears is. not only a process of social disintegration. Schmitt describes a turn from hetero. but rather considers them “interesting.”97 What Schmitt is describing here is a “communicative network that experiences its own unfinishability and the consequences of this unfinishability: the enablement of communication.”107 A “text” in this sense is “henceforth no longer a finished corpus of writing. “becomes but an occasion. or the constitution.”105 The movement of Schmitt’s thought hence reveals itself to be a strangely ambiguous maneuver in which a precise analysis simultaneously attempts to suppress and combat that which it seeks to describe: a legal system without a secure foundation that must always construct—that is to say. and a privileging of connectability at the expense of form. “The consentement of romantic occasionalism creates a fabric that the external world cannot touch. from foundation by way of a predetermined connecting point external to the system—God.e. The object is without substance.to self-reference. in the sense of an “individually disintegrated society. for romanticism. of an absolute center. N u m b e r 3 For Schmitt.”100 but rather a change of epistemological categories. This is what Schmitt defines as the essence of legal positivism: “the theoretical ratification of a social process characterized by the punctualization or occasionalization of the political foundation—whether this foundation is called the state. political unity. we can identify what Schmitt is describing as a textual phenomenon that subverts the supposedly necessary “notion of the last authority. It is a disintegrating concept. without function.”104 Reality.”98 Romanticism presents “possibility as the higher category.”103 Expressed in the vocabulary of systems theory. from substance to function. the despecification of the communicated meaning. i. a concrete point around which the romantic play of fantasy floats. a fabric of traces referring endlessly to something other than itself.”106 From our perspective. feign—its own certainties. to other differential traces. without essence. in this context. tradition. nature.L a w & L i t e r a t u r e • Vo l u m e 2 2 .102 Romanticism begins once one no longer accepts things as necessarily existing. some content enclosed in a book or its margins.. the constraint of a calculable causation. and hence every commitment to a norm.101 and a corresponding transformation of the concept of reason in which the old paradigm of “hearing” (Vernehmen) is replaced by the new of paradigm of “comparing” (Vergleichen). but a differential network.”108 What Schmitt calls the romantic “fabric” is a form 384 . the meaning of the occasional becomes still clearer when one compares it to its opposite: the occasional “negates the concept of the causa. and so on—to a process that creates its own internal connectivity. and therefore can also not refute.

” then. This construction would then derive its legitimacy not from an unassailable theoretical foundation. According to Derrida. the fact that the deconstructive method demonstrates the difficulties involved in reading and interpreting texts does not mean that the method itself is arbitrary. there is no “question of confusing. Instead of receiving their legitimacy from a supreme sovereign instance. no longer primarily vertical. but rather horizontal. blindness. Only when used ironically can “anything goes” serve as a motto for so-called postmodernism.110 Post-structuralist legal theory is quite capable of rising to this challenge. Contrary to a widespread misunderstanding. but rather from the functional imperatives of practice. and in all simplicity. no translation would be possible without it. “Text. heterarchical order. a more stable constitution of meaning might be possible in other areas as well. but rather describes the legal process as such. VI. A final.”109 Yet it is undeniable that jurisprudence has a special relationship to applicability. uncertainty. the different singular legal operations stabilize themselves by way of diverse connections and interconnections. decisive question remains to be answered: What concrete consequences could this new understanding of law’s textuality have for legal practice? As a first response.111 The fact that it is impossible to assign a fixed meaning to a text—because every signified can simultaneously function as a signifier and every clear distinction between these two elements hence collapses112—does not mean that every form of distinction has to be abandoned. For example. even a post-structuralist legal theory must do justice to the legitimate demand for a “robust” methodology. Hence. The fact that this opposition or difference cannot be radical or absolute does not prevent it from functioning and even from being indispensable within certain limits—very wide limits.”113 Accordingly. Although a reading is not entirely dictated by the 385 .Augsberg • Reading Law of textuality or positivism no longer directly bound to law or to the hierarchical architecture of the legal order. no longer refers merely to the written form of a primarily oral order. the signifier and signified. one could reject the implication that such a relationship to practice is necessary and instead argue that upsetting the traditional methodology is worthwhile in and of itself: “The power of ignorance. but which instead constructs its own. or misreading is often all the more redoubtable for not being perceived as such. at every level.

but rather to guarantee difference.”114 The insight that there is no transcendent truth. defining social “normalcy” requires shifting from an identity.” it is “nevertheless from the power of a piece of writing that a reading draws its power. a hypostasis. Under conditions of uncertainty. the goal in making decisions should be to leave sufficient room for divergent connecting operations. This explains the need for a functional perspective: There is. Law’s function is then no longer primarily to guarantee unity.”118 How and when a reading “functions” in this sense can only be decided within each concrete situation. The ‘nature’ of the text is given to us only as a text. no ultimately verifiable meaning to a text.119 Rather. subject to interpretation. instead. fragmented society. The truth of a text is a much more empirical and literal event. Under circumstances in which 386 . instead of presiding over it. under such conditions. Luhmann’s theory of fundamental rights120 can serve as an example of this kind of legal theory. in other words: than its functioning.to a difference-oriented perspective.”117 The “truth” of a text then consists only in the number of other possible readings with which a particular reading is able to connect and for which it is productive. does not allow us to dispense with the effort of distinguishing. successful reading must generate all of its criteria selfreferentially from within its own process. What makes a reading more or less true is simply the predictability. the reading process lacks any transcendental touchstone. successful reading must accept the plurality of data and yet at the same time must try to organize these data by establishing at least loose relationships.L a w & L i t e r a t u r e • Vo l u m e 2 2 . “no other proof of a reading than the quality and endurance of its systematics. Understanding is not a version of a single and universal Truth that would exist as an essence. Admittedly. In an increasingly pluralistic. regardless of the reader or of the author’s wishes.115 As an empirical process. instead. N u m b e r 3 text and instead depends on the “operations performed by the reader. the goal can no longer be to choose the solution that enforces the greatest social homogeneity. For. and is itself. This is the problem with the originally Kantian notion that the task of reading is to understand an author better than he understood himself.116 “There is simply no nature of the cognitive object text determining our understanding and setting its limits. the reader knows that there has to be a proper reading [une bonne lecture]. law’s general function may no longer be to stabilize normative expectations in the sense of creating social homogeneity. Roland Barthes declares. the necessity of its occurrence.

the difference-oriented perspective I am proposing not only affects law’s relationship to external irritations. understood as a social immune system. Instead of trying to use law to create “just conditions” directly.122 has to reprogram its immune reactions so that they focus more on protecting diversity and variation. to guarantee that its decisions remain open to dialogue with future decisions: Because of its necessarily tentative. the predictability of judicial decisions. which makes the stabilization of normative expectations possible. it must also be implemented within the legal system. since the general norms can never perfectly address each singular case and thus have to be supplemented by judicial creativity.”121 the specifically legal activity. In particular. which consists primarily of guaranteeing structures and institutions. under only slightly different factual circumstances. However. Therein lies the weakness of the “appreciation of values” paradigm.128 one should emphasize the indirectness of the legal function. experimental character. to protect self-reflexively its own processes from possible extrasystemic influences.129 In keeping with the indirectness of the legal function. so that change has become a constant.126 The judiciary must instead seek.” but rather is oriented toward the figure of difference 387 . every judgement must take into account the possibility that. This focus on the singular case and the call for a corresponding level of judicial self-restraint is not intended to abandon completely law’s function of stabilizing long-lasting social orders.Augsberg • Reading Law society has “dynamized its restabilization process. judicial interpretation has to reflect on its functional difference from processes of law making.125 the judiciary must be careful not to exceed its authority by producing decisions that are cryptopolitical in their effect. nor too focused on the necessity of an ad hoc “just solution. because of its merely ad hoc weighings of conflicting interests. in both positive and negative ways. whose respective. which. is no longer able to give society any kind of structural orientation.127 Such an approach asks too much of law even as it misunderstands law’s actual function. a completely different decision might have been possible. first and foremost. could be said—in keeping with the model of the iterability of signs characteristic of the reading process— to consist in the fact that legal reasoning is neither too general and hence cryptopolitical. This is particularly true when it comes to the need to defend the functional differentiation of society.124 Therefore. possibly conflicting rationalities123 must be protected from colonization by other. the task of law is. more dominant subsystems. Though the judiciary can never completely avoid law making.

and Andreas Voßkuhle. 4. The unread­ able is not the opposite of the readable. . it starts reading and writing and translation moving again.” 50 Jahrbuch des öffentlichen Rechts der Gegenwart. “Performanz: Die Kunst. Matthias Jestaedt. NJ: Princeton University Press. Die Sprache des Rechts. eds. for an exception that confirms the rule. Hans-Joachim Koch.” in Kent D.g. “Was macht die Qualität öffentlich-rechtlicher Forschung aus?. Law and Literature: A Misunderstood Relation (Cambridge. Formen und Medien der Kommunikation im Recht (Berlin/New York: de Gruyter. see Ino Augsberg. 2006). vol. “Methoden. 1. The situation is different in the United States. 7. including the possibility of reversing decisions. Die Lesbarkeit des Rechts. See. and Voßkuhle. F. 55. Wolfgang Hoffmann-Riem... Nussbaum. 2004). 263 (2006). does not leave it paralyzed in the face of an opaque surface: rather.. For the type of unreadability involved “does not arrest reading. “Methoden einer anwendungsorientierten Verwaltungsrechtswissenschaft.” in Hoffmann-Riem. Helmuth Schulze-Fielitz. 1988). Lerch. Neue Folge (2002). 3. of iterability. Müller 2000). but rather emphasizes their interplay. 5. 50. Changing the methodological perspective from an appreciation of values paradigm to a paradigm of law’s readability as a form of its “predictability” would then involve once again conceiving of judicial decisions as part of a general fabric. Schmidt-Aßmann. MA: Harvard University Press.” in Eberhard Schmidt-Aßmann and Wolfgang Hoffmann-Riem. 53. that is. e. 2006). Grundlagen des Verwaltungsrechts. movement.”130 1. “Innovationsoffenheit und Innovationsverantwortung durch Recht. 6. N u m b e r 3 and repetition. See Andreas Voßkuhle. See. Methoden—Maßstäbe—Aufgabe—Organisation (München: Beck.) 2.L a w & L i t e r a t u r e • Vo l u m e 2 2 . 1995). Methoden der Verwaltungsrechtswissenschaft (Baden-Baden: Nomos. § 1. Eberhard Schmidt-Aßmann.g. Guyora Binder and Robert Weisberg. 59 n. (Unless otherwise noted. sets it in motion. Cf. but rather the ridge [arête] that also gives it momentum. Recht vermitteln: Strukturen.. at § 3. 1. where we find a lively debate on “law and literature” with prominent participants: see. that is. Literary Criticisms of Law (Princeton. but rather include procedures of an experimental kind. Texttheoretische Lektionen für eine postmoderne juristische Methodologie (Weilerswist: Velbrück Wissenschaft. Einführung in die juristische Methodenlehre. Recht geschehen zu lassen.” 131 Archiv des öffentlichen Rechts 255. “Die 388 . Aufgaben rechtswissenschaftlicher Innovationsforschung. vol. Das mag in der Theorie richtig sein . Wolfgang HoffmannRiem. “Neue Verwaltungsrechtswissenschaft. 9. eds. e. 2d ed. Defining the judicial function in this way would not exclude. On this. supra note 2 at 28. (Heidelberg: C. with reference to Hans-Martin Pawlowski.170. Ralph Christensen and Kent D. Martha C. Lerch. Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press.. 105. id. 2000). all translations are my own. as text in a new. 2009). ed.” in Wolfgang Hoffmann-Riem. See Hoffmann-Riem. 3. . more general sense. This would be an understanding of textuality that no longer contrasts readability and unreadability. with reference mainly to Julia Kristeva. Vom Nutzen der Rechtstheorie für die Rechtspraxis (Tübingen: Mohr Siebeck. Richard Posner. Christoph Möllers. 2005).

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