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 lan guage. guag e. Rath Rather er,, we we should should atte attempt mpt to concei conceive ve of of the the leg legal al syst system em itsel itselff as as a spec specific ific form of of textu textualit alityy. I try to develop and elaborate this idea by regarding law from the various perspectives of Paul de Man’s Man ’s lite literary rary criti criticism cism,, John John Austin Austin’s ’s disc discussio ussionn of of perform performative ative utte utteranc rances es,, Rolan Rolandd Barth Barthes’ es’ decondecon struction stru ction of hermene hermeneutic uticss, media media theory theory,, and an ex negativo approach based on Carl Schmitt’s scorn for normativism. normativism. Finally Finally,, I ask for possible possible practical practical consequenc consequences es that the newly designed designed textua textuall 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 Literature, Vol. 22, Issue 3, pp. 3 – 33 33. issn 1535-85x, electronic issn 1541-201. © 2010 by The Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for per mission 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.2010.22.3.3
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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 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 ther apeutic 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 illimitab illimitable le abundance of interpretations, applications, and reactions; but most crucially, this manifold of interpretive possibilities does not indicate a lamentabl lamentablee insufficiency of the 370
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interpreters that could be healed in a messianic moment; rather, it is a structural effect of the constitution of language itself. itself. . . . The structure of language does not simply make make different interpretations of texts possible, but it does so with necessity.”10 This structural necessity affects not only the interpretation but also the preceding, seemingly simpler process of reading legal legal texts. Following Paul de Man, 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, as referential understanding, then this process becomes apparent as a paradoxically possible-impossible operation. De Man’s declaration that the “co-presence of intra- and extra-textual movements never reaches a synthesis,”12 spoken mainly in regard to metaphors, applies to language in general: Every reading is riven, not able to form that unity of meaning that constitutes the basis of a meaning-oriented act of understanding: Every construction, every system—that is, every text—has within itself the ignorance of its own exterior as the rupture of its own coherence which it cannot account for. No text can remove itself from a relation to the extralinguistic, and none can determine that relation. This undecidable relation to what it is constantly related to, prevents the text from closing into a totality. totality.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, the referentiality of language is always precarious. The promise—in German: Versprechen —of language remains unfulfilled.14 “Die Sprache verspricht (sich),”15 de Man writes in a “highly ironic, but necessary conjunction of Heidegger’s gnome ‘Die Sprache spricht’ and Freud’s vocabulary.”16 To “the extent that it is necessarily misleading, language just as necessarily conveys the promise of its own truth.”17 The reference to the denominated objects constitutes, at the same time, the difference by means of which language exempts itself from the relation to reality. Every text subverts its own coherence. It cannot be received as a compact entity, as the bearer of one certain meaning. Reading, in this sense, is an allegory of unreadability, . . . which cannot sublate the aporia of its operations to the unity of an act, in which the understanding could be certain of its own impossibility and could construct on this certainty a new new,, negative hermeneutics of a “free” play of associations but in which it articulates this aporia 37 1
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as the continued discrepancy between the necessary and the impossible act of reading—as an ironic one.18
A reading that does not try to hide, but that instead analyses and learns to deal with the inevitable immanent immanent ruptures within every text, can be characterized char acterized as deconstructive. This type of reading supposedly does not destroy but, on Johnson hnson explains: the contrary, “saves the text.”19 As Barbara Jo The de-construction of a text does not proceed by random doubt or arbitrary subversion, but by the careful teasing out of warring forces of signification within the text itself. If anything is destroyed in a deconstructive reading, it is not the text, but the claim to unequivocal domination of one mode of signifying over another. another. A deconstructive deconstruct ive reading is a reading that analyses the specificity of a text’s critical difference from itself.20
The ironic aporia elaborated by such a form of reading does not apply only to the field of literature in the narrow sense. It affects aff ects specifically juristic operations as well. The disjunction of the semantic function and the formal structure of language, of hetero- and self-reference, which cannot be described as a simple polarity but rather constitutes the undecidability of grammatical and figurative readings, has a direct parallel in the typical juridical process of applying a norm. On the one hand, this process must comply with its own requirements of internal consistency, consistency, while on the other hand, it must not fall f all short of its reference to the external sphere. Law proves to be a text in an eminent sense because it reproduces, in its own genuinely juristic modus operandi, the undecidability between between the demands of grammar and those of referentiality. “The legal or political text makes the structure of texts in general more explicit. . . . It ‘defines’ the general text better than any other.”21 Every statute remains clamped between the twofold, 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, no grammar is conceivable without the suspension of referential meaning. Just as no law can ever be written unless one suspends any consideration of applicability to a particular entity including, of course, oneself, grammatical logic can function only if its ref erential consequences are disregarded. 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. guar anteed. 372
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From the point of view of the legal text, it is this generality, which ruthlessly rejects any particularization, which allows for the possibility of its coming into being. Within the textual model, particularization corresponds to reference, since reference is the application of an undetermined, general potential for meaning to a specific unit. The indifference of the text with regard to its referential meaning is what allows the legal text to proliferate. prolif erate.23
But at the same time, the suppressed referentiality has to be identified as the juridical structure par excellence,24 for the statute insists on referring to its own applicability. [N]o law is a law unless it also applies to particular individuals. It cannot be left hanging in the air, in the abstraction of its generality generality.. Only by thus referring justicee of the law be tested, exactly as the justit back to particular praxis can the justic esse of any statement can only be tested by referential verifiability verifiability..25
This explains the necessity of a “juxtaposition of two readings in which the first forgets and the second acknowledges acknowledges the linguistic structure that makes it come into being.”26 The precondition of legal interpretation is formed by two readings that necessarily contradict each other, and therewith constitute the unreadability of the law.
I I.
What we have to examine, then, is how the traditional self-description of the legal system reacts to this dilemmatic double-bind situation; what we see is that it has great difficulties in dealing with these kinds of ironic aporias. 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. openly. The construction of the legal system can therefore be regarded as the more or less successful attempt to avoid this irony. The unreadability is concealed by a prearranged primacy of the voice: as juris-diction. The judicial judgement is, in a classically phonocentric way, way, supposed to guarantee guar antee the unity of what is heard and what is understood. Not even an otherwise advanced methodology questions this perspective, but, on the contrary, reaffirms it: “the judge does not listen and read, but he writes and speaks. . . . The judge does not spell every letter of the law. He articulates himself as the law.”28 373
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Yet a modified concept of text and writing might help to clarify c larify what exactly goes on in the legal process.29 To take a closer look at such a modified concept, we can start off with John L. Austin’s distinction between performative and constative speech acts. 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.”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. Although the judgement, at first glance, suggests that it is only repeating what was established before by statute, namely the state of the law, the belief that the judge’s judge ’s activity is so limited should, at the latest as of Napoleon’s lamentation over his “code perdu,”31 have vanished. But if we can no longer believe in the criteria of a steadfast legal text, we have to ask for the particular conditions under which a performative speech act can said to be correct. Whether such an act is “right,” that is, produces the effects it is supposed to in an adequate manner, manner, depends, according to Austin, on the context in which the act takes place: “Speaking generally, it is always necessary that the circumstances in which the words are uttered should be in some way, or ways, appropriate.”32 Though a complete standardization of the situational embedding might not be needed, consistent comprehensibility requires a concept of the “total speech situation,”33 that is, of the entire context. The problem, then, is whether such totalization is possible.34 It is a problem of factual circumstances as well as of time. With regard to the factual dimension, the context proves to be, in a double sense, illimitable and uncontrollable: First, any given context is open to further description. There is no limit in principle to what might be included in a given context, to what might be shown to be relevant to the performance of a particular speech act. . . . [Secondly,] any attempt to codify context can always be grafted onto the context it sought to describe, yielding a new context which escapes the previous for mulation.35
With respect to time we find an analogous problem: Performative utterances function only because of their embeddedness within ritualized patterns of behavior,, which have to combine experiences of the past with anticipations of behavior the future. However, 374
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if the temporality of linguistic convention, considered as a ritual, exceeds the instance of its utterance, and that excess is not fully capturable or identifiable (the past and future of the utterance cannot be narrated with any certainty), then it seems that part of what constitutes the “total speech situation” is a f ailure to achieve a totalized form in any of its given instances.36
In a paradoxical way, the condition of possibility of successful performative speech acts is at the same time the condition of their impossibility. impossibility. No “meaning can be determined out of context, but no context permits saturation.”37 But the totalization is not only not possible, it is also not desirable, for it would lead to a completely automatic language beyond every comprehensibility. “A totally stabilised context would make make the iterability of signs impossible, since one could not dissolve the signs from this hermetic context.”38 The theory of speech acts deconstructs, if taken literally, its own preconditions. This iterability that prevents the totalization of context is a characteristic element of the legal process pr ocess as well. Every positing carried out in legal judgements is “already iterability iter ability,, a call for self-preserving repetition”39; every legal decision, in the singularity of its performative perfor mative occurrence, takes takes place as an inscription in an actual, or at least virtual, plurality of corresponding operations. Nothing else is meant by the requirement that the facts of a case be subsumed under the “controlling” norm. The more sharply one focuses on this aspect of repetition, the more the performative element, which actively introduces new perspectives, recedes behind the merely declarative process of describing the outcomes of previously decided cases. This, again, legitimates the selfinterpretation of judgements as nothing more than a statement of the state of the law. The judgement says what it does and does what it says, and hence, autologically, describes its own process. If we take this fully into account, the possibility of a clear distinction between constative and performative speech acts collapses.40 As a performative act, every judgement is, coinstantaneously, constative.41 Austin himself is not unaware of the fragile, if not to say fictitious, status of his construction: Admittedly, “there is danger of our initial and tentative distinction between constative and performative utterances breaking down.”42 This danger cannot be eliminated. “The differentiation diff erentiation between performative and constative language . . is undecidable; undecidable; the deconstruction leading leading from one model to the other is irreversible but it always remains suspended, regardless of how often it is repeated.”43 There is no peaceful coexistence between these two strangely 375
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interwoven types of language. Their undecidable community constitutes a paradoxical constellation. For if “performatives are creating what they are talking talki ng about, they contradict the constative assumption of the preconditional status of what one is referring to.”44 Hence the constative and the performative movements constitute two “interdependent but incompatible linguistic functions: the function of unverifiable, verifiab le, nonreferential positing, and the referentiality ref erentiality that knows no secure ground other than that positing it disputes.”45 It is this combination of two irreconcilable irreconcilab le perspectives that marks the judgeme judgement nt as, according to a definition given by de Man, a text in an eminent sense: We call ca ll text any any entity that can be considered from such a double perspective: as a generative, open-ended, 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. The “definition” of the text also states the impossibility of its existence and prefigures the allegorical narratives of this impossibility. . . . A text is defined by the necessity of considering a statement, at the same time, as performative perfor mative and constative.46
This janus-facedness of the text provokes the necessity of interpretation, which, despite all attempts at stabilization, continuously produces new uncertainties. In this sense, we can understand “law as text” as a chiffre for the failure of the sharp distinction between constative and performative speech acts.
III.
This reference to the performative component of the judicial process indicates that, in order to understand the textuality of law, one has to go beyond the usual idea that a science of texts suggests. Once the performative component is taken into account, the understanding of legal texts can no longer be characterized as a simple “cognitive achievement.”47 Contrary to the classical conception of hermeneutics, her meneutics, which 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, we can raise a question that addresses an even earlier stage of the reading process: “What would happen if, for once, one were to reverse the ethos of explication and try to be really precise, replacing (or at least trying to replace) paraphrase by what one would 376
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have to call genuinely analytic reading, 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. What postmodern theories apostrophise as the “death of the author” 49 affects the concept of meaning itself. 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, albeit necessary, necessary, part of the process that produces a text ’s meaning.50 His approach is far more radical. By transforming the usually singular word “meaning” into a strange plural, he dismisses the entire traditional model. “Once the Author is removed, the claim to decipher a text becomes quite futile. To give a text an Author is to impose a limit on that text, to furnish it with a final signified, to close the writing.”51 The assumption that in Barthes’ theory the text “is no longer seen as a prefabricated product with a fixed, indeed still hidden yet definite and forever inscribed meaning, but rather as an open texture, whose meaning is always updated by the reader,”52 is, to say the least, capable of being misunderstood. In this formulation, Barthes’ model seems to still cling to the traditional concept of meaning, whereas the abandonment of this concept is precisely the aim, as well as the consequence, of Barthes’ model. Therefore, 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. He rejects the role of hermeneutics altogether.. The author is replaced by a particular textual operation: gether “Text” means “tissue”; but whereas hitherto we have always taken this tissue as a product, a ready-made veil, behind which lies, more or less hidden, meaning (truth), we are now emphasizing, in the tissue, the generative idea that the text is made, is worked out in a perpetual interweaving; lost in this tissue—this texture—the subject unmakes unmakes himself, like a spider dissolving in the construcconstr uctive secretions of its web.53
This transformed conception of reading, brought about by abandoning the assumption that reading can lead to epistemic certainty, also contains a normative element, which J. Hillis Miller concisely calls an “ethics of reading”: By “the ethics of reading” . . . , I mean that aspect of the act of reading in which there is a response to the text that is both necessitated, in the sense that it is a response to an irresistible demand, and free, in the sense that I must take 377
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responsibility for my response and for the further effects, “interpersonal,” institutional, social, political, or historical, of my act of reading.54
From a legal perspective, this normative aspect of reading can be paraphrased in terms of a theory of democracy: A positive positive expression of the democratic idea would consist in not breaking off debates prematurely, but rather in allowing for their open-endedness. This theory of democracy would emphasize difference rather than identity, and it would judge a democracy not by its results, but by its procedural elements, an ongoing process that subverts every given result. 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. 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,” antecedent to any form of immanent controversies (and be they only the formal procedures of correct speech), 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, in the first instance, the war against those who refuse to accept those irreducible truths—is not to come. By this means, such a “theory” transforms philosophy into the formal continuation of the old theology, whose (salutory) certainties it replaces—thereby ‘sublating’ them—with its own “logical” formalisms relating to the procedure of argumentation. In short: The community’s political institutionalizations, its immanent, always open constitution, which can never be completed for once and for all, is replaced by this constitution’s constitution ’s philosophical foundation.55
With remarkable candor, Habermas in particular claims a theological heritage for his program of completing the unfinished project of modernity, thereby exposing his own pretensions. The morality Habermas constructs on the basis of discourse ethics is supposed to conserve something of the “penetrating strength of sacral original powers; it penetrates the in-the-meantime functionally differentiated levels of culture, society, and personality in a manner that is unique for modern societies.”56 Instead of trying tr ying systematically to uncouple uncouple the concepts of democracy and of soverei sovereignty gnty,,57 discourse ethics merely finds a new way of filling the place of the sovereign, which had become empty. By attempting to fill the vacant position with deliberative processes, it reestablishes 378
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a metaphysical, authoritarian ideal. By replacing the earlier philosophical universalia, contemplation and reflection, with the new paradigm of “communication,” 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. Habermas’ “theology of communication”60 fails to understand that, 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.62 “Whoever believes that absolute truth or absolute values are inaccesible to human understanding has to accept that not only his own, but also the foreign, contrary opinion might be possible. Therefore relativism is the weltanschauung presupposed presupposed by the democratic idea.”63 With regard to our transformed concept of hermeneutics, this relativism encompasses not only an indifferent acceptance of divergent possible interpretations, but includes the fundamental priority of plurality over every— whether transcendentally or pragmatically constructed—sovereign unity. unity. The interpretation demanded by a specific text, in its plurality, is in no way liberal; it is not a question of conceding some meanings; magnanimously acknowledging that each one has its share of truth; it is a question, against all in-difference, of asserting the very existence of plurality, which is not that of the true, the probable, or even the possible.64
Contrary to this priority of plurality, Habermas’ conception unintentionally confirms a general thesis by Michel Foucault 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.”65 Since the king, however, is in the classical political politic al model only the earthly representative of higher powers,66 what needs to be decapitated is the entire system of occidental ontotheological metaphysics.67 Hence murdering the king is a process of secularization, not only as an alienating adoption of, but also as a fundamental abandonment of the theological concept. conce pt. This, at least, is the horizon of Barthes’ analysis of the death of the author: [L]iterature (it would be better from now on to say writing ), ), by refusing to assign a “secret,” an ultimate meaning to the text (and to the world as text), liberates what may be called an anti-theological activity, an activity that is truly t ruly revolutionary since to refuse to fix meaning is, in the end, to refuse God and his hypostases—reason, science, law.68 379
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Democracy, then, is not merely the replacement of the old sovereign with a new governing subject, “demos,” constituted by way of contrafactual assumptions. Rather, democracy takes shape as a political system sys tem in which governance is always fractured and the status of subjectivity always newly disseminated. The democratic process would then designate a movement of constant repetition—a movement, however, that not only reproduces itself in a tautological sense, but that, by reiterating itself within its own structures, allows for the emergence of something new. “Reading” is just another word for this process.
IV.
According to literary critic Aleida Assmann, “writing’s “writing’s claim to and promise of eternity both rely on two basic assumptions: first, that the physical existence, and second, that the readability of texts is guaranteed.”69 As we have seen, the general readability of texts is very much in doubt. This raises the question of the materiality or mediality of law: What were the basic media of law, law, how were they modified in the course of time, 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, i.e. of keeping it apart from the difference between its appearance on a printed page, on the monitor of a computer, or as a voicemail-message.” 70 Once we abandon this notion, our discussion becomes part of a more general task: “Law has to be conceived of and analysed as a media constellation.”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, virtual, hypertextual forms of law-making—which stand for the flexibility of positive, and hence changeable, 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, but also underestimates the enduring relevance of texts in the computer age. The physical substrate of positive law, in which its words are inscribed, cannot be separated from attempted readings, nor can it be regarded merely as supplemental information in the manner of a pseudo-McLuhanism. The fact that every linguistic operation takes place as a form in a medium does not remain an external circumstance, but rather affects the form itself. “The 38 0
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text organizes itself based not only on the ideal meaning of its elements, but materiality itself intervenes in the organization of the text and may, for instance, open up transitions that the use of arguments can no longer control.”72 Conceived of as a paradoxical remainder that denies every attempt at gaining hermeneutical access, 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 in the process pr ocess only reproduces the dichotomy of signifier and signified. Mediality cannot easily be interpreted as a medially communicated message; rather, 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, but that instead comes to bear “behind their backs” as a non-discoursive power. It is the mediality of language that makes all conceptions of speech as an intentional, intersubjectively controllable manipulation of signs fall short.74
From this perspective, the interplay between signifier and signified, as traditionally understood, is just a variation on the more general problem of how to deal with a certain logic of repetition: According to this logic, every repetition simultaneously requires both a de- and a re-contextualization. The identity of what is repeated can only be understood as a form of difference.75 “No repetition leaves leaves the repeated identity intact, for it is always a way around the Other, the blank spaces, spaces, that divide the repetitions from each other.”76 The simple opposition opposition of stability and variation fails to capture ca pture this perspective, and it fails to do justice to the functional aspects of the writing process. These functional aspects themselves must be reconsidered. “In a dynamically stabilized auto-poietic auto-poietic system of social communications communications there is no interest in the stability of meaning as such. The problem consists in anticipating a new interest in the same information, not simply in the idea that what endures is better than what is transitory.”77 It is this general logic of difference and repetition that the early stone tablets dissimulated, but that becomes explicit in hypertexts. This is the logic of writing.
V.
To illuminate further the logic of writing and the specifically legal necessity of the textual form, it might be helpful to add another, negative perspective. 38 1
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To do so, we must take a closer look at exactly the opposite position, analyzing conceptions of law that combine a preference for the spoken word with a distrust of positive law and that, since St. Paul’s teaching on the “end of law,” often carry an antisemitic subtext.78 A typical exponent of this idea is the “most discussed German jurist of the 20th century,”79 a legal scholar who, according to Hannah Arendt, was “without doubt the most important man in Germany in the areas of constitutional and public international law”80: Carl Schmitt. A note in his posthumously published Glossarium, written in the year 148, states: “My disapproval of positivism came with growing age. Had it made more sense in youth? Compare with this the disapproval of ‘positivity’ by the young Hegel. Positivity legality Jewry despotism paroxysm of ‘ought to do’ and norm.”81 Consequently,, Schmitt’s Consequently Schmitt ’s own conception of norm, the nomos, is described as a deliberately alegal, antipositivist figure, whereas whereas statutes in a normativist sense are supposed to be a phenomenon of degeneration. Schmitt wants to give back to the word nomos “its initial strength and greatness, though it has in the course of time, already in the ancient world, lost its original meaning, meaning, and has at last sunk to an insubstantial, general designation for every normativist regulation and adjustment.”82 Schmitt understands nomos —in —in a phil philolog ological ically ly dubious manner83 —as the orig original inal divi division sion and distr distributi ibution, on, the “Ur“Ur-T Teilu eilung ng und Ur-Verteilung”84 of a people’s land; he describes it as a “space-dividing basic operation.”85 In this “original meaning,” nomos is “the complete immediacy of legal force not mediated by statutes; a constitutive historical event, an act of legitimacy, which gives meaning to the legality of the bare statute in the first place.”86 This explains why Schmitt, employing a typical antisemitic stereotype, could reproach Kelsen’s Kelsen’s “Pure Theory of Law” for its groundlessness.87 Not only did Schmitt explain “normativism” as one of the “three types of legal thought,” but he assigned it to an—unnamed, yet easily recognizable—people. “There are peoples,” Schmitt declares, “that exist without ground, without state, without church, only in the law. For them, the normativist thought appears to be the only reasonable form of legal thought, and every other form of thought appears to be incomprehensible, mystical, fantastic, or ridiculous.”88 Schmitt’s resistance to this type of thought, which sees itself as being obligated only to law, goes hand in hand with his effort to contrast the liberal notion of equality before the law with a homogeneity of a different kind.89 Starting from the initial observation that a plurality of voices pronounces the =
38 2
=
=
=
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same words and sentences differently, and proceeding to the assertion that this phonetic difference has grave consequences for the process of legal interpretation, 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.” His solution to this problem is what he calls Artgleic Artg leichheit hheit , that is, “equality of nature”: We are looking for a bond more reliable, more alive, deeper than the deceptive bond established by the pervertable letters of a thousand legal paragraphs. Where else could we find it than within ourselves and our own nature? n ature? Here, too, in view of the indissolvable connection between officialdom and judicial independence, all questions and answers lead to the necessity of an equality of nature, without which a total leader state [Führerstaat ] could not exist for one day.90
Why then should we, against the background of such statements, 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. The fact that it is impossible to adopt positively the types of positions described above does not exclude the possibility possibility of learning lear ning something from Schmitt from an ex negativo perspective. The question that must be asked, then, is to what extent this legal scholar’s work “corresponds to a problem that transcends tr anscends the horizon of the suggested solution.”91 What is interesting about Schmitt’s work, then, is not what Schmitt propagated as his “doctrine” or “lesson,”92 but rather what he feared most, and yet in this fear, in the “courage of his fear,”93 perceived accurately and presented, at least in an indirect way. In Political Romanticism, Schmitt calls it the “occasional.”94 Schmitt introduces this concept to describe the romantic movement. For Schmitt, Romanticism, for the first time, reveals the true nature of the occasional. It does so by placing the individual in the role previously reserved for God, thereby subjectifying traditional occasionalism. Through this subjectification, for the first time, everything can “really become an occasion for everything, and everything that comes and everything that follows becomes, in an adventurous way, incalculable.”95 What emerges is “an always new, but only occasional world, a world without substance, and without functional connections, without steadfast leadership, without conclusion and without definition, without decision, without last judgement, endlessly proceeding, led only by the magic hand of chance.”96 3 83
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For Schmitt, the meaning of the occasional becomes still clearer when one compares it to its opposite: the occasional “negates the concept of the causa, i.e., the constraint of a calculable causation, and hence every commitment to a norm. It is a disintegrating concept.”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, the despecification of the communicated meaning, and a privileging of connectability at the expense of form.”98 Romanticism presents “possibility as the higher category.”99 What Schmitt fears is, in this context, not only a process of social disintegration, in the sense of an “individually disintegrated society,”100 but rather a change of epistemological categories, from substance to function,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 ).102 Romanticism begins once one no longer accepts things as necessarily existing, but rather considers them “interesting.”103 Expressed in the vocabulary of systems theory, theory, Schmitt describes a turn tur n from hetero- to self-reference, from foundation by way of a predetermined connecting point external to the system—God, nature, tradition, and so on—to a process that creates its own internal connectivity. “The consentement of of romantic occasionalism creates a fabric that the external world cannot touch, and therefore can also not refute.”104 Reality, for romanticism, “becomes but an occasion. The object is without substance, without essence, without function, a concrete point around which the romantic play of fantasy floats.”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, say, feign—its own certainties. This is what Schmitt defines as the essence of legal positivism: punctualiuali“the theoretical ratification of a social process characterized by the punct zation or occasionalization of the political foundation—whether foundation—whether this foundation is called the state, political unity, or the constitution.”106 From our perspective, we can identify what Schmitt is describing as a textual phenomenon that subverts the supposedly necessary “notion of the last authority, authority, of an absolute center.”107 A “text” in this sense is “henceforth no longer a finished corpus of writing, some content enclosed in a book or its margins, but a differential network, a fabric of traces referring endlessly to something other than itself, to other differential traces.”108 What Schmitt calls the romantic “fabric” “fabric” is a form for m 38 4
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of textuality or positivism no longer directly bound to law or to the hierarchical architecture of the legal order, but which instead constructs its own, no longer primarily vertical, but rather horizontal, heterarchical order. Instead of receiving their legitimacy from a supreme sovereign sovereign instance, the different singular legal operations stabilize themselves by way of diverse connections and interconnections. “Text,” then, no longer refers merely to the written form of a primarily oral order, but rather describes the legal process as such.
VI.
A final, decisive question remains to be answered: What concrete consequences could this new understanding of law’ law’ss textuality have for legal practice? As a first response, 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, blindness, uncertainty, or misreading is often all the more redoubtable for not being perceived as such.”109 Yet it is undeniable that jurisprudence has a special relationship to applicability. Hence, even a post-structuralist legal theory must do justice to the legitimate demand for a “robust” methodology.110 Post-structuralist legal theory is quite capable of rising to this challenge. Contrary to a widespread misunderstanding, the fact that the deconstructive method demonstrates the difficulties involved in reading and interpreting texts does not mean that the method itself is arbitrary. Only when used ironically can “anything goes” serve as a motto for so-called postmodernism.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 —doe —doess not mean that eve every ry form of distin distinction ction has to be abandoned. According to Derrida, there is no “question of confusing, at every level, and in all simplicity, the signifier and signified. 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. For example, no translation would be possible without it.”113 Accordingly, a more stable constitution of meaning might be possible in other areas as well. This construction would then derive its legitimacy not from an unassailable theoretical foundation, but rather from the functional imperatives of practice. Although a reading is not entirely dictated by the 3 85
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text and instead depends on the “operations performed by the reader,” it is “nevertheless from the power of a piece of writing that a reading draws its power. For, the reader knows that there has to be a proper reading [une bonne lecture].”114 The insight that there is no transcendent truth, no ultimately verifiable meaning to a text, does not allow us to dispense with the effort of distinguishing. Understanding is not a version of a single and universal Truth that would exist as an essence, a hypostasis. The truth of a text is a much more empirical and literal event. What makes a reading more or less true is simply the predictability, the necessity of its occurrence, regardless of the reader or of the author’s wishes. 115
As an empirical process, 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. Admittedly, Admittedly, the reading process lacks any transcendental touchstone; instead, successful reading must generate all of its criteria selfreferentially from within its own process. This is the problem with the originally Kantian 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 ‘nature’ of the text is given to us over it, us only as a tex text t , and is itself, instead of presiding over subject to interpretation.”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. This explains the need for a functional perspective: There is, Roland Barthes declares, “no other proof of a reading than the quality and endurance of its systematics; in other words: than its functioning.”118 How and when a reading “functions” in this sense can only be decided within each concrete situation. In an increasingly pluralistic, fragmented fr agmented society, society, law’s general function may no longer be to stabilize normative expectations in the sense of creating social homogeneity.119 Rather, under such conditions, defining social “normalcy” requires shifting from an identity- to a difference-oriented perspective. Under conditions of uncertainty uncertainty,, the goal can no longer be to choose the solution that enforces the greatest social homogeneity; homogeneity; instead, the goal in making maki ng decisions should be to leave sufficient room r oom for diverg divergent ent connecting operations. Law’s function is then no longer primarily to guarantee unity, but rather to guarantee difference. Luhmann’s theory of fundamental rights120 can serve as an example of this kind of legal theory. theory. Under circumstances in which 38 6
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society has “dynamized its restabilization process, so that change has become a constant,”121 the specifically legal activity, understood as a social immune system,122 has to reprogram its immune reactions so that they focus more on protecting diversity and variation. This is particularly true when it comes to the need to defend def end the functional differentiation of society, society, whose respective, possibly conflicting rationalities123 must be protected from colonization by other, more dominant subsystems.124 Therefore, the task of law is, first and foremost, to protect self-reflexively its own processes from possible extrasystemic influences. However, However, the differdiff erence-oriented perspective I am proposing not only affects law’s relationship to external irritations; it must also be implemented within the legal system. In particular, judicial interpretation has to reflect on its functional difference from processes of law making. Though the judiciary can never completely avoid law making, since the general norms can never perfectly address each singular case and thus have to be supplemented by judicial creativity,125 the judiciary must be careful not to exceed its authority by producing decisions that are cryptopolitical in their effect.126 The judiciary must instead seek, in both positive and negative negative ways, to guarantee that its decisions remain open to dialogue with future decisions: Because of its necessarily tentative, tentative, experimental character, every judgement judgement must take into account the possibility that, under only slightly different factual circumstances, a completely different decision might have been possible. 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 law’s function of stabilizing long-lasting social orders. Therein lies the weakness of the “appreciation of values” paradigm, which, because of its merely ad hoc weighings of conflicting interests, 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. Instead of trying to use law to create “just conditions” directly,128 one should emphasize the indirectness of the legal function, which consists primarily of guaranteeing structures and institutions.129 In keeping with the indirectness of the legal function, the predictability of judicial decisions, which makes makes the stabilization of normative expectations possible, 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, nor too focused on the necessity of an ad hoc “just solution,” but rather is oriented toward the figure of difference 38 7
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and repetition, that is, of iterability iterability.. Defining the judicial function in this way would not exclude, but rather include procedures of an experimental kind, including the possibility of reversing decisions. Changing the methodological 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, that is, as text in a new,, more general sense. This would be an understanding of textuality that no new longer contrasts readability and unreadability unreadability,, but rather emphasizes their interplay. For the type of unreadability involved “does not arrest reading, does not leave it paralyzed in the face of an opaque surface: rather, it starts reading and writing and translation moving again. The unreadable unreadable is not the opposite of the readable, but rather the ridge [arête] that also gives it momentum, movement, sets it in motion.”130
1. Wolfgang Hoffmann-Riem, “Innovationsoffenheit und Innovationsverantwortung durch Recht.
Aufgaben rechtswissenschaftlicher Innovationsforschung,” 131 Arch Archiv iv des öffentl öffentliche ichenn Rechts 255, 23 (200). (Unless otherwise noted, all translations are my own.) 2. See Andreas Voßkuhle, “Neue Verwaltungsrechtswissenschaft,” in Wolfgang Hoffmann-Riem, Eberhard Schmidt-Aßmann, and Andreas Voßkuhle, eds., Grundlagen des Verwaltungsrechts , vol. 1, Methoden Meth oden—Maß —Maßstäbe stäbe—Aufg —Aufgabe— abe—Org Organisa anisation tion (München: Beck, 200), § 1. Cf . Christoph Möllers, “Methoden,” in Hoffmann-Riem, Schmidt-Aßmann, and Voßkuhle, id. at § 3; Wolfgang HoffmannRiem, “Methoden einer anwendungsorientierten Verwaltungsrechtswissenschaft,” in Eberhard Schmidt-Aßmann and Wolfgang Hoffmann-Riem, eds., Method Methoden en der Verwal erwaltungsr tungsrecht echtswissensc swissenschaft haft (Baden-Baden: Nomos, 2004), . 3. See, e.g., Helmuth Schulze-Fielitz, “Was macht die Qualität öffentlich-rechtlicher Forschung aus?,” 50 Jahrbuchh des öffentli Jahrbuc öffentlichen chen Recht Rechtss der Gege Gegenwart. nwart. Neue Folge Folge (2002), 1, 50. 4. See, for an exception that confirms the rule, Ralph Christensen and Kent D. Lerch, “Performanz: Die Kunst, Recht geschehen zu lassen,” in Kent D. Lerch, ed., Die Sprache des Rechts , vol. 3, Recht vermitteln: Strukturen, Formen und Medien der Kommunikation im Recht (Berlin/New York: de Gruyter, 2005), 55, 105, with reference mainly to Julia Kristeva. The situation is different in the United States, where we find a lively debate on “law and literature” with prominent participants: see see,, e.g., e.g., Richard Posner, Law and Literature: Literature: A Misund Misunderstood erstood Relation (Cambridge, MA: Harvard University Press, 188); Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 15); Guyora Binder and Robert Weisberg, Litera Literary ry Critic Criticisms isms of Law (Princeton, NJ: Princeton University Press, 2000). 5. Matthias Jestaedt, Das mag in der Theorie richtig sein . . . Vom Nutzen der Rechtstheorie für die Rechtspraxis (Tübingen: Mohr Siebeck, 200), 5 n.170. . On this, see Ino Augsberg, Die Lesbarkeit des Rechts. Texttheoretische Lektionen für eine postmoderne juristische juristi sche Method Methodologie ologie (Weilerswist: Velbrück Wissenschaft, 200). Einführung ührung 7. See Hoffmann-Riem, supra note 2 at 28, with reference to Hans-Martin Pawlowski, Einf in die juristische Methodenlehre , 2d ed. (Heidelberg: C. F. Müller 2000), 53; Hans-Joachim Koch, “Die
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8. . 10. 11. 12. 13. 14. 15. 1.
17. 18. 1. 20. 21. 22. 23. 24. 25. 2. 27. 28. 2. 30. 31. 32. 33. 34.
35. 3. 37.
Begründung von Grundrechtsinterpretationen,” Europä (18), 345; Chri Europäische ische Grund Grundrech rechte-Ze te-Zeitschr itschrift ift ( stian Seiler, Ausleg (Heidelberg: C. F. Müller, 2000), 10. Auslegung ung als als Normkonkret Normkonkretisieru isierung ng (Heidelberg: Wolfgang Hoffmann-Riem, “Gesetz und Gesetzesvorbehalt im Umbruch: Zur Qualitäts-Gewährleistung durch Normen,” 130 Archiv des öffentlic öffentlichen hen Rechts Rechts 5, 12 (2005). Jacques Rancière, Disagreement: Politics and Philosophy (Minneapolis, London: University of Minnesota Press, 1), x. Werner Hamacher, “LECTIO: de Man’s Imperative,” in Lindsay Waters and Wlad Godzich, eds., (Minneapolis: University of Minnesota Press, 18), 171, 18. Reading de Man Reading (Minneapolis: Geoffrey Hartman, “Looking Back on Paul de Man,” in Waters & Godzich, supra note 10 at 3, 20. Paul de Man, “Reading (Proust),” in Alleg Allegories ories of Reading: Figural Figural Language Language in Roussea Rousseau, u, Nietzsche, Nietzsche, (New Haven, London: Yale University Press, 17), 57, 71. Rilke, and Proust (New 132 2 (185). Hans-Jost Frey, “Undecidability,” “Unde cidability,” Yale French Studies 124, 13 See J. Hillis Miller, The Ethics of Reading: Kant, de Man, Eliot, Trollope, James, and Benjamin (New York: Columbia University Press, 187), 35. Paul de Man, “Promises (Social Contract ),” ),” in Alle Allegorie goriess of Reading Reading , supra note 12 at 24, 277 (emphasis in original). Werner Hamacher, “Unlesbarkeit,” in Paul de Man, Alle Allegorie gorienn des Lesens (Frankfurt am Main: Suhrkamp, 188), 7, 21; for the quotation from Martin Heidegger, see Unterwegs zur Sprache , 4th ed. (Pfullingen: Neske, 171), 14. De Man, supra note 15 at 277. Hamacher, supra note 1 at 17. Geoffrey H. Hartman, Saving the Text: Literature/Derrida/Philosophy (Baltimore, London: John Hopkins University Press, 181), with reference of course to the platonic sozein ta phainomen phainomenaa (id., at xv). Barbara Johnson, “The Critical Difference: BartheS/BalZac,” in The Critical Difference: Essays in the (Baltimore, London: John Hopkins University Press, 180), 3, 5. Contemporary Rhetoric of Reading (Baltimore, Jacques Derrida, Memoir Memoires es for Pau Paull de Man, rev. ed. (New York: Columbia University Press, 18), 142. De Man, supra note 15 at 28. Id. (Frankfurt am Main: Fischer, 2000), 33, with See Cornelia Vismann, Akten Akten:: Medientechnik Medientechnik und Recht (Frankfurt regard to Derrida and Pierre Legendre. De Man, supra note 15 at 2. Paul de Man, “Tropes (Rilke),” in Alle Allegorie goriess of Reading Reading , supra note 12 at 20, 83. Niklas Luhmann, Rechtssoziologie, 2nd ed. (Opladen: Westdeutscher Verlag, Verlag, 183), 40; Luhmann, Das (Frankfurt am Main: Suhrkamp, 13), 131. Recht der Gesellschaft (Frankfurt Friedrich Müller, Ralph Christensen, and Michael Sokolowski, Rechtstext und Textar (Berlin: DunkTextarbeit beit (Berlin: ker & Humblot, 17), 83, 8. Id. at 115. John L. Austin, How to Do Things with Words (Oxford: Oxford University Press, 12), 5. Kiesow,, Das Alphabet des Rechts (Frankfurt am Main: Fischer, 2004), 2. See Rainer Maria Kiesow Austin, supra note 30, at 8. Id. at 147. Jacques Derrida, “Signature Event Context,” in Limite Limitedd Inc. (Evanston, IL: Nothwestern University Press, 188), 1, 3; Jonathan Culler, On Deconstruction: Theory and Criticism after Structuralism (London: Routledge 183), 124. Culler, supra note 34 at 123 ff. Judith Butler, Ex Excit citabl ablee Spe Speec ech: h: A Poli Politic ticss of of the the Pe Perfo rforma rmativ tivee (New York and London: Routledge, 17), 3. Jacques Derrida, “Living On/Border Lines,” in Harold Bloom, Paul de Man, Jacques Derrida, and Geoffrey Hartman, Deconstruction and Criticism (New York: Continuum, 17), 75, 81.
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38. Urs Stäheli, Sinnzusammenbrüche. Eine dekonstruktive Lektüre von Niklas Luhmanns Systemtheorie (Wei-
lerswist: Velbrück Wissenschaft 2000), 145, 8. Cf . Derrida, supra note 34. 3. Jacques Derrida, “Force of Law: The ‘Mystical Foundations of Authority,’” in Gil Anidjar, ed., Acts of of Religion (New York, London: Routledge, 2001), 230, 272. 40. De Man, supra note 15 at 270; Derrida, supra note 21 at 133. 41. Jacques Derrida, “Declarations of Independence,” in Elizabeth Rottenberg, ed., Nego Negotiatio tiations: ns: IntervenInterventions and Interviews 1971– 2001 2001 (Stanford, CA: Stanford University Press, 2002), 4, 48. 42. Austin, supra note 30 at 54. 43. Paul de Man, “Rhetoric of Persuasion (Nietzsche),” in Allegories of Reading , supra note 12 at 11, 130. 44. Bettine Menke, Prosopopoiia: Stimme und Text bei Brentano, Hoffmann, Kleist und Kafka (München: Fink 2000), 53. 45. Hamacher, supra note 10 at 12. 4. De Man, supra note 15 at 270. 47. Joachim Hruschka, Das Verstehen von Rechtstexten: Zur hermeneutischen Transpositivität des positiven Rechts (München: Beck, 172), 1. 48. Paul de Man, Foreword to Carol Jacobs, “The Dissimulating Harmony (178),” in Critical Writings, 218 8, 220. (Minneapolis: University of Minnesota Press, 18), 21 1953– 1978 1978 (Minneapolis: 4. Roland Barthes, “The Death of the Author,” in Richard Kearney and David M. Rasmussen, eds., Continental Aesthetics: Romanticism to Postmodernism—An Anthology (Malden, Oxford: Blackwell, 2001), 371. 50. In this direction, see Dietrich Busse, “Was ist die Bedeutung eines Gesetzestextes?,” in Friedrich Müller, ed., Untersuchungen zur Rechtslinguistik: Interdisziplinäre Studien zu praktischer Semantik und Strukturierender Rechtslehre in Grundfragen der juristischen Methodik (Berlin: Duncker & Humblot, 18), 3, 122. 51. Barthes, supra note 4 at 373. 52. Marc Amstutz and Vaios Karavas, “Rechtsmutation: Zu Genese und Evolution des Rechts im transnationalen Raum,” Rechtsgeschichte 14, 20 (200). 53. Roland Barthes, The Pleasure of the Text (New (New York: Hill and Wang, 175), 4. 54. Hillis Miller, supra note 14 at 43. 55. Clemens Pornschlegel, “Der Ort der Kritik: Zur Diskussion der Menschenrechte bei Gilles Deleuze und Félix Guattari,” Gu attari,” in Friedrich Balke and Joseph Vogl, Vogl, eds., Gilles Deleuze—Fluchtlinien der Philoso phie (München: Fink, 1), 17, 10. 5. Jürgen Habermas, Theorie des kommunikativen Handelns, Bd. 2 , Zur Kritik der funktionali funktionalistisch stischen en VerVer (Frankfurt am Main: Suhrkamp, 181), 140. nunft (Frankfurt 57. See Jacques Derrida, Rogues: Two Essays on Reason (Stanford, CA: Stanford University Press, 2005). (London, New York: Verso, 14), 7. 58. Gilles Deleuze and Félix Guattari, What is Philosophy? (London, 5. Georg Wilhelm Friedrich Hegel, Theorie Werkausgabe , vol. 2, Jenaer Schrifte Schriftenn ( 1801 1801– 1807 1807 ) (Frankfurt am Main: Suhrkamp, 170), 432. Gutenberg-Gala -Galaxis: xis: Die neuen Kommunika Kommunikationsve tionsverhältn rhältnisse isse , 2nd ed. (Mün0. Norbert Bolz, Am Ende der Gutenberg chen: Fink, 15), 2. 1. Geoffrey Bennington, “Ex-Communication,” in 5 Studies in Social and Political Thought , University of Sussex (October 2001), 51. 2. Raphael Gross, Carl Schmitt und die Juden. Eine deutsche Rechtslehre (Frankfurt am Main: Suhrkamp, 2000), 238. 3. Hans Kelsen, Vom Wesen und Wert der Demokratie , 2nd ed. (Tübingen: Mohr Siebeck, 12), 101. (New York: Hill and Wang, 174), 5. 4. Roland Barthes, S/Z (New 5. Michel Foucault, The History of Sexuality , vol. 1, An Introduction (New York: Pantheon, 178), 88. religion dans dans la démocr démocratie atie (Paris: Gallimard, 18), 13. . Marcel Gauchet, La religion
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7. Martin Heidegger, “Die onto-theo-logische Verfassung der Metaphysik,” in Gesamtausgabe, vol. 11, Identität und Differenz , Friedrich-Wilhelm v. Herrmann, ed. (Frankfurt am Main: Klostermann, 200), 51. 8. Barthes, supra note 4 at 373. . Aleida Assmann, Erinn Erinnerung erungsräume sräume:: Formen und Wandlung Wandlungen en des kulturellen kulturellen Gedächtnisse Gedächtnissess (München:
Beck, 1), 203. 70. Hans Ulrich Gumbrecht, Diesseits der Hermeneutik: Die Produktion von Präsenz (Frankfurt am Main: Suhrkamp, 2004), 28. 71. Christensen & Lerch, supra note 4 at 5. 72. Stäheli, supra note 38 at 173. 73. Fabian Steinhauer, “Die Rückkehr des Bilderstreits in das Recht,” in Lerch, supra note 4 at 43, 40. 74. Sybille Krämer, “Sprache—Stimme—Schrift: Sieben Gedanken über Performativität als Medialität,” in Uwe Wirth, ed., Performanz: Zwischen Sprachphilosophie und Kulturwissenschaft (Frankfurt am Main: Suhrkamp, 2002), 323, 332. 75. See Gilles Deleuze, Difference and Repetition (New York: York: Columbia University Universi ty Press, 15); José Faur, Golden Doves with Silver Dots: Semiotics and Textuality in Rabbinic Tradition (Bloomington: Indiana University Press, 18), 51. 7. Stäheli, supra note 38 at 170. 77. Luhmann, Das Recht der Gesellschaft , supra note 27 at 255. mèpris des Juifs. Nietzsc Nietzsche, he, les Juifs, Juifs, l’antisemit l’antisemitisme isme (Paris: Galilée, 14). 78. See Sarah Kofman, Le mèpris 7. Gross, supra note 2 at 7. For Schmitt’s followers, see Reinhard Mehring, “Carl Schmitt und die Verfassungslehre unserer Tage,” 120 Arch Archiv iv des öffentlic öffentlichen hen Rechts Rechts 177 (15). (München: Piper 18), 544 n.53. Elemente te und Ursprü Ursprünge nge totaler totaler Herrsch Herrschaft aft (München: 80. Hannah Arendt, Elemen 81. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947 – –1951 1 951, Eberhard Freiherr von Medem, ed. (Berlin: Duncker & Humblot, 11), 20. 82. Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum , 3d ed. (Berlin: Duncker & Humblot, 188), 3. 83. See Christian Meier, “Zu Carl Schmitts Begriffsbildung—Das Politische und der Nomos,” in Helmut Quaritsch, ed., Complexio Oppositorum: Über Carl Schmitt (Berlin: (Berlin: Duncker & Humblot, 188), 537, 553. 84. Schmitt, supra note 82 at 3. 85. Id., at 3, 47. This definition of nomos, published after World War II but presumably written earlier, has a predecessor: “Following the will of the Führer is, is, as Heraklit told us, a nomos, too. . . . When we talk of leadership and the concept of the leader we may not forget that true leaders belong to this fight and that our fight would be hopeless if we had to miss them. . . . We have them, and therefore I finish my lecture by telling two names: Adolf Hitler, Führer of of the German people, whose will now forms the nomos of the German people, and Hans Frank, Führer of of our German legal front, spearhead for our good German law, role model of a national-socialist German jurist. Heil!” (Carl Schmitt, “Der Neubau des Staats- und Verwaltungsrecht,” in Deutscher Juristentag 1933 , 4. Reichstagung des Bundes Nationalsozia Nation alsozialistisc listischer her Deutsche Deutscherr Juristen Juristen e.V., e.V., Ansprachen Ansprachen und und Fachvorträ Fachvorträge ge , Rudolf Schraut, ed. [Berlin 134], 242, 25 2511). Cf . Gross, supra note 2, at 70. 8. Schmitt, supra note 82 at 42. 87. See Gross, supra note 2 at 225. 88. Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens , 2nd ed. (Berlin: Duncker & Humblot, 13), . 8. See Werner Hill, Gleichheit und Artgleichheit (Berlin: (Berlin: Duncker & Humblot, 1), 182. 0. Carl Schmitt, Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit , 2nd ed. (Hamburg: Hanseatische Verlagsanstalt, 133), 4. For Schmitt’s concept of “Artgleichheit,” see Peter Schneider, (Stuttgart: Deutsche Verlags Ausnahmezusta Ausnahm ezustand nd und Norm: Norm: Eine Studie Studie zur zur Rechtslehre Rechtslehre von Carl Schmitt Schmitt (Stuttgart: Anstalt, 157), 21 2111.
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1. Friedrich Balke, Der Staat nach seinem Ende: Die Versuchung Carl Schmitts (München: Fink, 1), 7, 15. 2. On this, see Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters C hapters on the Distinction between Politi3. 4.
5. . 7. 8. . 100. 101.
102. 103. 104. 105. 10. 107. 108. 10. 110. 111.
112. 113. 114. 115. 11.
117. 118. 11. 120.
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(Chicago: University of Chicago Press, 18). cal Theology and Political Philosophy (Chicago: See Jacques Derrida, The Politics of Friendship (London, New York: Verso, 2005), 107. Carl Schmitt, Politische Romantik, 2nd ed. (München, Leipzig: Duncker & Humblot, 125), 22; and on this, Karl Löwith, “Der okkasionelle Dezisionismus von C. Schmitt,” in Sämtliche Schriften, vol. 8, Heidegger—Denker in dürftiger Zeit. Zur Stellung der Philosophie im 20. Jahrhundert (Stuttgart: Metzler, 184), 32. Schmitt, supra note 4 at 24. Id., at 25. Id., at 22. Balke, supra note 1 at 27. Schmitt, supra note 4 at 8. Id., at 2. See Schmitt, supra note 81 at 10, with reference to Ernst Cassirer’s essay “ Substanzbegriff und Funktionsbegriff ” (Berlin 110); sceptically to the coherence of Cassirer’s distinction and the concept of occasio, see Schmitt, supra note 4 at 13 n.1; on this see Balke, supra note 1 at 12. Niklas Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie , 2nd ed. (Berlin: Duncker & Humblot, 175), 8. See Schmitt, supra note 4 at 222. Id., at 14. Id., at 123. Balke, supra note 1 at 12. Schmitt, supra note 4 at 22. Derrida, supra note 37 at 84. Barbara Johnson, “Opening Remarks,” in The Critical Difference, supra note 20 at ix, xii. For such a claim, see Hoffmann-Riem, supra note 2 at 7. Cf. Paul Feyerabend, Agai Against nst Method Method:: Outline Outline of an Anarc Anarchistic histic Theory of Knowledg Knowledgee , 3rd ed. (London: Norton, 13), 11. For a characteristic misunderstanding, see Gunther Teubner, in “The Blind Spot: The Hybridization of Contracting, 8 Theoretical Inquiries in Law , 51, 1 ( 200): “postmodern arbitrariness . . . —anything goes whenever a theory seems to have reached its limits.” See Jacques Derrida, Of Grammatology (Baltimore: John Hopkins University Press, 177). Jacques Derrida, “Semiology und Grammatology: Interview with Julia Kristeva,” in Positions (Chicago: University of Chicago Press, 181), 15, 20. Claude Lefort, “Sade: the Boudoir and the City,” in Writing: The Political Test (Durham, (Durham, London: Duke University Press, 2000), 7, 71. 2211. De Man, supra note 48 at 22 Cf. with reference to Schleiermacher Manfred Frank, Das individuelle Allgemeine: Textstrukturierung Textstrukturierung 358 8. The formula und Textinterpretation nach Schleiermacher (Frankfurt am Main: Suhrkamp, 185), 35 has a judicial pendant in the statement that a statute could be more intelligent than its authors (BVerfGE 3, 342 [32]); on this, see Gustav Radbruch, Rechtsphilosophie, 8th ed. (Stuttgart: Koehler, 173), 207; Einführun 254 4. (S tuttgart: Koehler, 1), 25 Einführungg in die die Rechtswissen Rechtswissenschaf schaft t , 12th ed. (Stuttgart: Müller, Christensen, and Sokolowski, supra note 28 at 13 132 2. Barthes, supra note 4 at 11. Hoffm an-Riem, Krimin See Wolfgang Hoffman-Riem, Kriminalpoli alpolitik tik ist ist Gesellscha Gesellschaftspoli ftspolitik tik (Frankfurt am Main: Suhrkamp, 2000), 14. See Luhmann, supra note 102.
Augsberg • Reading Law
121. Andreas Fischer-Lescano and Ralph Christensen, “Auctoritatis interpositio: Die Dekonstruktion des 122. 123.
124.
125.
12.
127.
128. 12. 130.
Dezisionismus durch die Systemtheorie,” 44 Der Staat 21 2133, 230 (2005). Niklas Luhmann, Soziale Systeme: Grundriß einer allgemeinen Theorie , 4th ed. (Frankfurt am Main: Suhrkamp, 14), 504, 50; Luhmann, Das Recht der Gesellschaft , supra note 27 at 55. See Gunther Teubner, “Ein Fall von struktureller Korruption? Die Familienbürgschaft in der Kollision unverträglicher Handlungslogiken,” 83 Kritis Kritische che Vierte Vierteljahre ljahresschr sschrift ift für Gesetzg Gesetzgebun ebungg und Recht Rechtsswissenschaft 388 (2000). See Gunther Teubner, “Societal Constitutionalism: Alternatives to State-centred Constitutional Theory?” (“Storrs Lectures 2003/04” Yale Law School), in Christian Joerges, Inger-Johanne Sand, and Gunther Teubner, eds., Constitutionalism and Transnational Governance (Oxford: Hart, 2004), 3; Karl-Heinz Ladeur, Der Staat gegen die Gesellschaft: Zur Verteidigung der Rationalität der “Priva (Tübingen: Mohr Siebeck, 200), 14, 348. trechtsgesellschaft” (Tübingen: See Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts , 2nd ed. (Tübingen: Mohr Siebeck, 14), 23; Martin Kriele, Theorie der Rechtsgewinnung, entwickelt am Problem der Verfassungsinterpretation (Berlin: Duncker & Humblot, 17), 50. See Bernd Rüthers, “Demokratischer Rechtsstaat oder oligarchischer Richterstaat?,” Juristen JuristenZeiZei (2002), 35; Christoph Möllers, “Mehr oder weniger virtuos. Der Mann am Klavier: Was spielt tung ( BGH-Präsident Hirsch?,” Frankfurter Allgemeine Zeitung , Oct. 2, 200, 37; Günther Hirsch, “Zwischenruf—Der Richter wird’s schon richten,” Zeitschrift für Rechtspolitik (200), 11; “Auf dem Weg JuristenZeitun Zeitung g zum Richterstaat? Vom Verhältnis des Richters zum Gesetzgeber in unserer Zeit,” Juristen (2007), 853. See Karl-Heinz Ladeur, Kritik der Abwägung in der Grundrechtsdo Grundrechtsdogmati gmatik: k: Plädoyer für eine Erneuerung der liberalen Grundrechtstheorie (Tübingen: Mohr Siebeck, 2004), 13; Ladeur and Ino Augsberg, “Auslegungsparadoxien, Zu Theorie und Praxis juristischer Interpretation,” 3 Rechtstheorie 143, 158 (2005). On the difference between justice and law, see Derrida, supra note 3. See Ladeur, supra note 127 at 58. Derrida, supra note 37 at 11. On this, see Eckhard Schumacher, Die Ironie der Unverständlichkeit: Johann Georg Haman Hamann, n, Friedr Friedrich ich Schle Schlegel, gel, Jacques Derrida, Pau Paull de Man (Frankfurt am Main: Suhrkamp, 2000), 333.
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