3.1.3 The texture of text-driven normativity

By Mireille Hildebrandt

In this section we will attempt to describe the texture, the fabric, the materiality of text-driven normativity in terms of the mode of existence of legal norms, what affords them and what they in turn afford, with an eye to legal protection (by design).

Modern positive law is an open system of legal norms that have binding force for legal subjects that share a jurisdiction. Legal norms are articulated in natural language and in the case of positive law they are embedded in text. Based on speech act theory we can say that speaking is acting, and we add that such action is embodied. Written speech acts are embodied insofar as humans do the writing or the printing, the result is not embodied but embedded (e.g. on a piece of paper or a screen). The materiality of law can be found in the embodiment of natural language and in the embedding of written law in the technologies of text.

The embodiment of natural language is not only a matter of speaking or writing, but also a matter of perception as we perceive the world through the lens of one or more specific languages,¹ and also a matter of our memory which is made up of past experiences and framings that are continuously sorted, stored and reconfigured in light of upcoming challenges.²

Text enables us to not only remember a legal norm by recalling it but also by retaining it outside our body, on a piece of paper or in a computing system, to remind us of its precise articulation. Building on Husserl, Bernard Stiegler spoke of ‘tertiary retention’.³ Primary retention concerns the temporary retention of visual, auditory, tactile and olifactory input; it involves the flux of incoming signals that must be bridged and connected with each other in a way that affords us to ‘make sense’ of our environment. Such primary retention affords us the intuitive ability to navigate the space-time we inhabit. Secondary retention concerns the layered and interactive storage of past experience, ready for recall and reconfiguration, woven together in light of further experience, thus in-forming (moulding) primary retention, attributing meaning based on the particular language frame(s) that do the sorting and welding, thus affording us to also navigate our institutional world. As one can imagine, the materiality of tertiary retention has another mode of existence than first and secondary retention, as it concerns inscriptions on external carriers — whose content, however, infuse and reconfigure our secondary and primary retention.

The ambiguity of natural language safeguards the open texture of the interplay between written legal norms and their development in real life contexts.

In the case of law, tertiary retention makes a difference to the kind of fabric that can be woven between those who share jurisdiction. Because it affords a much broader reach of the norm, both in time and in space, it affords large jurisdictions. As legal norms proliferate and cover more ground, however, it becomes crucial to prevent contradictions and to interpret any legal norm in such a way that is aligns with the other legal norms that are in force. The need to resolve contradictions invites the systematic character of the law as a complex and dynamic hierarchy of applicable legal norms, where the difference between Hart’s primary and secondary norms afford a multi-dimensional architecture. It induces a tightly woven but nevertheless flexible texture of interacting legal norms that can only be properly understood if their interrelationships are charted and mapped. This — in a way — explains the mode of existence of modern positive law as an adaptive system of legal norms that is both in flux and reasonably stable, inherently contestable while capable of closure.

The tension between the contestability and the need for closure affords the dedicated system of checks and balances that is core to the rule of law. Legal norms do not exist in a vacuum, they cannot be understood outside the interplay between the intra-linguistic coherence of written legal speech acts and the extra-linguistic world they regulate by attributing legal effect. The ambiguity of natural language safeguards the open texture of the interplay between written legal norms and their development in real life contexts. Though this development is constraint by the wordings chosen by legislatures and courts, in the end it is shaped by how those who share jurisdiction interpret these wordings. The development of law is thus shaped by the performative effect that is afforded by these wordings — which effect is neither causal nor mechanical but constitutive of the meaning of the legal norms involved.

Legal protection as-we-know-it hinges on the tension between contestability and the need for closure that defines modern positive law. This tension must be sustained rather than resolved. It must be sustained in a way that protects against arbitrary decision making while nevertheless providing legal certainty. We have spent centuries to grow, nurture, cultivate and refine modern positive law and it is not in any way perfect, completed or finished. It requires continuous repair, reinvention and reconfiguration, while the implied goals of legal certainty, justice and instrumentality vouch for an uneasy mode of existence that cannot be taken for granted. The protection offered is a fragile artificial construct that requires acuity rather than mathematical precision, judgement rather than calculation and, in the light of data- and code-driven law, it will require keen attention to law’s current technological embodiment in the technologies of printed text.

Legal protection as-we-know-it hinges on the tension between contestability and the need for closure that defines modern positive law. This tension must be sustained rather than resolved.

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