3.2.4 The texture of text-driven normativity

By Gianmarco Gori

The concepts of the rule of Law and positive law entertain a co-constitutive relation: on one hand, the “law” which “rules” is positive law; on the other, the constellation of values and normative standards enshrined by the doctrine of the rule of law informs the understanding of what amounts for positive law to “rule”.

Power is afforded and constrained by the medium through which it is exercised.

Law represents a powerful tool, in that the artificial reality that it constitutes produces real effects which can determine the protection of rights and liberties as much as their annihilation. The constitutive nature of the power of law can be grasped in terms of a “power of naming”, that is, a power capable of establishing “what counts as law” as much as “what counts as arbitrariness”, of qualifying what counts as “rights” and “liberties”, and what counts as their violation.

Such power, on the other hand, is afforded and constrained by the medium through which it is exercised: the language of positive law and the texts through which the latter is transmitted, apprehended, carried forward. In this light, the power of law can be better accounted for as a form of text-driven normativity, that is, a normative force whose distinctive feature rests in the relationships established between jurists and rules expressed in the forms of legal texts. The latter do not govern by themselves: their binding force depends on the acts through which they are read, appropriated, cultivated, referred to, articulated as reasons for action in the context of the practices which set framework which makes a behaviour intelligible as normative action. To the extent that the force of law can be configured as the power of naming, as Gadamer highlighted, language affords the “freedom from the names we give things”: as long as it is expressed through linguistic communication, human action is set free from the force of determination exercised by the environment.¹

In this respect, the text-driven form of normativity which distinguishes the rule of positive law affords to address and de-escalate a dual challenge. On one hand, it tackles the threat posed by the absolutist claims of sovereigns which, like Hobbes’s Leviathan (or Carroll’s Humpty Dumpty), stand as “masters of language”, arrogating for themselves the power to make their words mean just what they choose them to mean.² In such a case, law-making would amount to a power of unilateral determination which, therefore, could not be constrained by law, in that the latter would be nothing more than the errant will of the sovereign. On the other hand, text-driven normativity hampers the entrenchment of a servile attitude on the part of the addressee of sovereign power, i.e., the assumption that obedience to law and a close and critical reading of legal texts are mutually exclusive.³

The authoritative character of the language of law is strictly tied to its capacity to be recognized as authoritative and intelligible.

Such challenges are overcome by the public character which distinguishes any language⁴ and, therefore, also the language of law. A language cannot be private, since the possibility for it to be understood necessarily implies its shared character. What Alice says in reply to Humpty-Dumpty, i.e., that “the question is … whether you can make words mean so many different things”, also apply to the sovereign. As long as the “power of naming” referred to above is exercised through natural language it is simultaneously informed by the constraints which distinguish the latter. It can “do things”, being assumed as guide for action, only to the extent that it is capable of “finding its feet” with the shared understanding and judgment of the community jurists. In the perspective of the concept of the rule of law, it is worth emphasizing that, while the sovereign has the power to enact legal texts, the power to apply the latter, i.e., to attribute them normative meaning, belongs to the community of interpreters.⁵ On the other hand, Hale emphasized how enactments such as statutes and judicial decisions can become law, i.e., produce normative effects, only when they have been incorporated into the substratum of legal practice.⁶

The authoritative character of the language of law is strictly tied to its capacity to be recognized as authoritative and intelligible. These are not self-evident features of texts, but meanings that are ascribed to the latter and which, as meanings, can become self-evident, automatic, once the use of text is deeply entrenched and backed by the mutual recognition of the partners of legal practices. The circumstance that texts do not determine their meaning and, therefore, their normative force, brings to the fore the relevance of the text-driven practices performed by jurists. On one hand, this helps acknowledging the scope of the agency which is attributed to the readers of legal texts, and how jurists constantly put into play and rearticulate the words expressed into the latter by “doing things” with them, i.e., claiming a right, opposing an argument, advance a motion for a mistrial, etc.. On the other hand, it contributes to highlight how the form of normativity which emerges from the relation which jurists establish with texts unfolds in a situated dimension. Texts cannot be read and understood in isolation, but always in the context of a tradition which incorporates the meaning which is “handed down from the past”.⁷ Postema well represents the standpoint of jurists by referring to the figure of Bifront Janus, the Roman god of beginnings and gates: as Janus, jurists find themselves looking at the present from a standpoint which is situated “on the threshold of past and future, seeking to integrate them into a normatively meaningful whole”.⁸

On one hand, that which the act of reading a text establishes between past, present and future is not a relation of causal determination, but of conceptual determination, whose force is forged through the normative activities performed by using legal texts as a common reference, i.e., explaining or teaching their meaning, justifying, contesting, or correcting the application of the norms thereby inscribed.⁹ On the other, while the concepts of rule of law and positive law put a premium on stability and continuity, as Fish emphasizes, that which distinguishes legal practice is a peculiar form of “conservatism”.¹⁰ The circumstance that law cannot accept that a case is unrelated to the past magnifies the performative character of the acts of reading legal texts: the past is indeed constantly rewritten in view of the present.¹¹

Whereas a look into history confirms that legal traditions do not necessarily afford legal protection,¹² the very fact of being a linguistic tradition, i.e., something that needs to be appropriated and carried on, affords the possibility to change and extend the vocabulary of positive law. In this sense, text-driven normativity affords that which is to be protected, as much as what counts as adequate protection, to emerge and eventually consolidate “as we go along”.¹³

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