3.3.5 The texture of text-driven normativity
A Dutch citizen is arrested in the Netherlands shortly after stealing a car. We can say that the statement ‘she stole a car’ is true when the facts of the situation are proven to satisfy the set of legal conditions that define when something constitutes as theft as set out by the provision in the criminal code in a court of law, thereby triggering the legal effect that she is now punishable for the offence under Dutch criminal law. From the moment she performs that legally relevant act her legal status as a legal subject has now changed, and her rights and obligations have been altered in light of this act. However, under Dutch jurisdiction theft does not apply between spouses so if it turns out the stolen car is actually the property of her spouse she will not be prosecuted or punishable for that offence. If the incident had happened within the territory of a different state, under a different jurisdiction with different criminal laws as a matter of positive law, this exception might not have applied.
This example illustrates concretely the connection between the three concepts under discussion in this chapter: ‘legal effect’ is the term we use to refer to the consequence of a legally relevant (f)act and entails a change in the legal status of a legal subject, for example a change in their subjective rights or legal powers, their rights or obligations. This can for example consist in the attribution or voiding of obligations or the qualification of some state or behavior as either lawful or unlawful. As mentioned above, the necessary condition for legal effect to be attributed is the fulfilment of a certain set of legal conditions as specified in positive law, which can be found in one of the sources of law. As positive law depends on and can differ per jurisdiction, legal effect in turn will also differ per jurisdiction (which is not to say that some legal effects may not be common to many jurisdictions). Sources of law, jurisdiction and legal effect are therefore inextricably linked and are at the core of the legal protection afforded by text-driven law. The sections in this chapter have sought to demonstrate the deep connection between law’s current mode of existence as text-driven, speech act theory and the world of institutional facts. But it is important to note speech acts will not magically ‘do what they say’, and legal speech acts will therefore also not automatically bring about the legal protection we desire or need. Crucially, whether a speech act has performative effect therefore depends on a shared acceptance of or acquiescence in the world of institutional facts it is embedded in. It builds on a pragmatist understanding of language and depends ‘on a shared background consisting of hidden assumptions, mutual beliefs and a joint practice that grounds the use and thereby the meaning of words and more generally of human action’.1
Whether a speech act has performative effect depends on a shared acceptance of or acquiescence within the world of institutional facts in which it is embedded.
While action and perception in this context have been explained in terms of agent-environment dynamics and affordances, where affordances are traditionally defined as what the environment offers the animal in terms of possibilities for action,2 the world of abstract and conceptual legal thought seems less straightforwardly accommodated in those terms. Rather than trying to fit absent, abstract or counterfactual thought — or institutional fact — into the classic understanding of affordances as originally conceived by Gibson, it is therefore perhaps better to view this in terms of ‘enlanguaged affordances’.3 This notion puts emphasis on the ways in which the affordances of the human ecological niche are interwoven with practices of speaking and writing.4 Speech and writing allow us to engage with affordances across long timescales and allow us to think in abstract and institutional terms about the world. The meaning of an utterance comes from a language game as a whole and the contexts they are embedded in place constraints on their meaning — there is no private language. The very nature of the web of meaning, as Taylor puts it, is to be ‘present as a whole in any one of its parts. To speak is to touch a bit of the web, and this is to make the whole resonate’.5 It also by virtue of the open-texture of natural language and text that interpretation has become the hallmark of modern positive law. For if we did not have multiple ways of interpreting or constructing meaning within our larger web of meaning, we would not have the possibility to argue over the most fitting one or contest the ones we think do not fit within that larger fabric of our legal institutional order. In that way, it also invites us to reflect about the systematicity, or integrity, of the body of legal norms taken together as a whole.
The legal protection offered by virtue of the law’s text-driven ICI needs to be safeguarded because these are affordances of the ICI of text that, in turn, afford us to institute the checks and balances that make up the rule of law. As Waldron says, to deny the possibility of arguing for a given interpretation ‘is to truncate what the Rule of Law rests upon: respect for the freedom and dignity of each person as an active center of intelligence’.6 The law, in its current mode of existence, by virtue of the affordances of natural language and printed text, can always be contested by those who are expected to apply it to themselves. Legal protection by design then is by no means a pre-emptive exclusion of the use of different technologies in the legal realm, rather it can be understood as a manifesto for the preservation of thoughtfulness in law. Thoughtfulness in this sense, following Waldron, means the ‘capacity to reflect and deliberate, to ponder complexity and to confront new and unexpected circumstances with an open mind, and to do so articulately (and even sometimes argumentatively) in the company of others with whom we share a society’ and means putting the focus on a conception of the rule of law that embodies this and on the dignity that can be found in being ruled accordingly.7
Legal protection by design reminds us that even though notions like the sources of law and legal effect are important for the sake of safeguarding law’s core values like certainty and predictability, these latter values are not the be all and end all of the law. They need to be weighed against other values – in a continuous evaluative exercise, and it is that exercise and the procedures that facilitate it that are of the utmost importance and affords us lasting protection. Legal protection by virtue of countervailing powers, institutions and procedures. As Waldron reminds us:
[Practitioners] know very well that anything approximating ‘mechanical jurisprudence’ is out of the question. Law is an exceedingly demanding discipline intellectually, and the idea that it consists in the thoughtless administration of a set of operationalised rules with determinate meanings and clear fields of application is of course a travesty.8
The adaptive nature or productive ambiguity of natural language might have been a happy accident for the legal protection afforded to us by law’s current mode of existence, but this does not mean it is a bug. Rather, it is arguably law’s most important feature. Much of the push for the optimization of law is thus based on a fundamental misunderstanding of what the end goal is and what legal protection consists in: interpretative exercises are not subjectivist inefficiencies, argumentative practices are not infinite and inherently relativistic back-and-forths, legal standards are not indeterminate and inchoate rules that still need to be concretized. These are all procedural elements core to the rule of law that encourage thoughtfulness, rather than force thoughtlessness upon us.
M. Hildebrandt, ‘A Philosophy of Technology for Computational Law’ in D. Mangan, C. Easton and D. Mac Síthigh, The Philosophical Foundations of Information Technology Law (forthcoming 2021) at p. 6. ↩
J.J. Gibson, The ecological approach to visual perception (1979, Boston: Houghton Mifflin) at pp. 127-128. ↩
J. Kiverstein and E. Rietveld, ‘Scaling-up skilled intentionality to linguistic thought’ (2021) 198 (1) Synthese pp. 175-194. ↩
E. Cuffari, E. Di Paolo & H. De Jaegher, ‘From participatory sense-making to language: There and back again’ 14(4) Phenomenology and the Cognitive Sciences 1089-1125 as cited in Kiverstein and Rietveld (n 35) at p. 176. ↩
C. Taylor, ‘Language and human nature’ in Human agency and language: Philosophical papers 1 (CUP, 1985) p. 231 as cited in Kiverstein and Rietveld (n 3) at p.186; also see generally L. Wittgenstein, Philosophical investigations (trans: G.E.M. Anscombe) (Blackwell 1953) and H.-G. Gadamer, Truth and Method (1979). ↩
J. Waldron, ‘The Concept and the Rule of Law’ (2008) 43(1) Georgia Law Review 1, pp. 59-60. ↩
J. Waldron, ‘Thoughtfulness and the Rule of Law’ (2011) 18 British Academy Review 1-12, at p. 1. ↩
Ibid, at p. 4. ↩